Wittenberg v Gillis [2022] NSWSC 1163

Wittenberg v Gillis [2022] NSWSC 1163

The offer of $320,000 plus ordinary costs was a genuine attempt to compromise and conformed with r 20.26. Although it contained a condition preserving the legal practice's enforcement rights, Mr Wittenberg was not disadvantaged by that condition because he engaged with it and proposed counter-provisions. There was therefore no rational basis to order otherwise than the presumptive effect of r 42.15A, and indemnity costs were ordered from after 5PM on 24 March 2019.

Jurisdiction
Australia
Judgment Date
26 August 2022
Procedural Posture
Civil Procedure Costs Application in Proceedings for Professional Negligence / Consequential Orders; Application for a Special Costs Order After Judgment
Outcome
Costs order varied; defendant's application for a special costs order granted.
Legal Topics
['special Costs Order' 'indemnity Costs' 'offer to Compromise' 'calderbank Offer' 'uniform Civil Procedure Rules 2005 (nsw) R 42.15 A']
['civil Procedure' 'costs' 'professional Negligence'] ['special Costs Order' 'indemnity Costs' 'offer to Compromise' 'calderbank Offer' 'uniform Civil Procedure Rules 2005 (nsw) R 42.15 A']

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Procedural Posture

Civil Procedure Costs Application in Proceedings for Professional Negligence / Consequential Orders; Application for a Special Costs Order After Judgment

Legal Issues

  1. 1 ['Whether the costs order made on 25 March 2022 should be varied to order indemnity costs after the date on which the offer of compromise took effect.' "Whether the defendant's offer of compromise was a genuine attempt to compromise the case and conformed with Uniform Civil Procedure Rules 2005 (NSW) r 20.26." "Whether the condition preserving the legal practice's rights to enforce a costs assessment judgment justified ordering otherwise than the presumptive effect of r 42.15A."]

Ratio Decidendi

The offer of $320,000 plus ordinary costs was a genuine attempt to compromise and conformed with r 20.26. Although it contained a condition preserving the legal practice's enforcement rights, Mr Wittenberg was not disadvantaged by that condition because he engaged with it and proposed counter-provisions. There was therefore no rational basis to order otherwise than the presumptive effect of r 42.15A, and indemnity costs were ordered from after 5PM on 24 March 2019.

Court Disposition

Costs order varied; defendant's application for a special costs order granted.

Orders

  • ['Vary order two, pronounced on the 25 March 2022, so it reads: "2. The plaintiff to pay the defendant\'s costs, up to and including 5PM on 24 March 2019, on an ordinary basis, and thereafter on an indemnity basis, as agreed or assessed."' "The plaintiff to pay the defendant's costs of the application for a special...