Commissioner of Taxation v Evenfont (No. 2) [2009] NSWSC 9

Commissioner of Taxation v Evenfont (No. 2) [2009] NSWSC 9

The defendants' offer to accept judgment in their favour with each party bearing its own costs was a valid offer involving a genuine element of compromise, was open for a reasonable period, and attracted r 42.15A because the UCPR costs and offer provisions formed part of the usual practice and procedure applicable to Excise prosecutions through s 136 of the Excise Act 1901 (Cth). The plaintiff did not establish circumstances warranting an order otherwise or a reduction of the defendants' costs, and the length of the litigation justified interest on costs from the dates the allowed costs were paid to the defendants' solicitors.

Jurisdiction
Australia
Judgment Date
30 January 2009
Procedural Posture
Excise Prosecution / Consequential Costs Orders Determined on Written Submissions After Dismissal of the Second Further Amended Statement of Claim
Outcome
Costs order varied in favour of the defendants; plaintiff to pay ordinary costs to 23 March 2007, indemnity costs from 24 March 2007, and interest on allowed costs.
Legal Topics
['costs in Excise Prosecutions' 'offers of Compromise' 'indemnity Costs' 'interest on Costs' 'application of Uniform Civil Procedure Rules 2005 (nsw)']
['excise' 'taxation' 'civil Procedure' 'costs'] ['costs in Excise Prosecutions' 'offers of Compromise' 'indemnity Costs' 'interest on Costs' 'application of Uniform Civil Procedure Rules 2005 (nsw)']

Case Brief

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Procedural Posture

Excise Prosecution / Consequential Costs Orders Determined on Written Submissions After Dismissal of the Second Further Amended Statement of Claim

Legal Issues

  1. 1 ["Whether the defendants' offer of compromise under r 20.26 of the Uniform Civil Procedure Rules 2005 (NSW) attracted the costs consequences in r 42.15A in an Excise prosecution." "Whether the Court should order otherwise and refuse indemnity costs because of the defendants' conduct or because the offer was not open for a reasonable period." "Whether the plaintiff should pay only a proportion of the defendants' costs because the defendants' conduct allegedly lengthened the trial." "Whether interest should be ordered on the defendants' costs and from what date it should accrue."]

Ratio Decidendi

The defendants' offer to accept judgment in their favour with each party bearing its own costs was a valid offer involving a genuine element of compromise, was open for a reasonable period, and attracted r 42.15A because the UCPR costs and offer provisions formed part of the usual practice and procedure applicable to Excise prosecutions through s 136 of the Excise Act 1901 (Cth). The plaintiff did not establish circumstances warranting an order otherwise or a reduction of the defendants' costs, and the length of the litigation justified interest on costs from the dates the allowed costs were paid to the defendants' solicitors.

Court Disposition

Costs order varied in favour of the defendants; plaintiff to pay ordinary costs to 23 March 2007, indemnity costs from 24 March 2007, and interest on allowed costs.

Orders

  • ['Vary the costs order pronounced on 22 December 2008 as follows:' "The plaintiff is to pay the defendants' costs up to and including 23 March 2007 on the ordinary basis and on and from 24 March 2007 on the indemnity basis." "The plaintiff is the pay the defendants interest on the defendants' costs provided that the...