Brendan Wilfred King v Robert Lawrence Adams [2017] NSWSC 117

Brendan Wilfred King v Robert Lawrence Adams [2017] NSWSC 117

The plaintiff's settlement offers were admissible because the negotiation history, including offers made by the plaintiff, was relevant to assessing the reasonableness of rejecting the defendants' offers. Indemnity costs were refused because the $50,000 and $300,000 offers, in all the circumstances including the factual and legal uncertainties and the costs position, amounted to requiring capitulation and were not genuine compromises whose rejection was unreasonable. The plaintiff's press conduct, trial conduct and incurring of legal costs did not justify indemnity costs. As the unsuccessful party, the plaintiff was to pay costs on an ordinary basis.

Jurisdiction
Australia
Judgment Date
24 February 2017
Procedural Posture
Costs Application / Costs Hearing After Judgment for Defendants
Outcome
Indemnity costs refused; plaintiff to pay costs on an ordinary basis.
Legal Topics
['indemnity Costs' 'offer of Compromise' 'calderbank Offer' 'reasonableness of Rejection of Offer' 'without Prejudice Privilege' 'evidence Act 1995 (nsw) S 131(2)(h)']
['civil Procedure' 'costs' 'evidence'] ['indemnity Costs' 'offer of Compromise' 'calderbank Offer' 'reasonableness of Rejection of Offer' 'without Prejudice Privilege' 'evidence Act 1995 (nsw) S 131(2)(h)']

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Procedural Posture

Costs Application / Costs Hearing After Judgment for Defendants

Legal Issues

  1. 1 ['Whether material concerning settlement offers made by the plaintiff was admissible under section 131(2)(h) of the Evidence Act 1995 (NSW) as relevant to determining liability for costs.' "Whether the defendants' offers of $50,000 and $300,000 were real and genuine offers of compromise." "Whether it was unreasonable for the plaintiff to reject the defendants' offers so as to justify indemnity costs." "Whether the plaintiff's alleged press campaign, scandalous allegations, trial conduct, or incurring of legal costs justified an indemnity costs order."]

Ratio Decidendi

The plaintiff's settlement offers were admissible because the negotiation history, including offers made by the plaintiff, was relevant to assessing the reasonableness of rejecting the defendants' offers. Indemnity costs were refused because the $50,000 and $300,000 offers, in all the circumstances including the factual and legal uncertainties and the costs position, amounted to requiring capitulation and were not genuine compromises whose rejection was unreasonable. The plaintiff's press conduct, trial conduct and incurring of legal costs did not justify indemnity costs. As the unsuccessful party, the plaintiff was to pay costs on an ordinary basis.

Court Disposition

Indemnity costs refused; plaintiff to pay costs on an ordinary basis.

Orders

  • ['The plaintiff should be ordered to pay the costs on an ordinary basis.' "The parties are to approach the judge's associate with short minutes of order to reflect the reasons."]