Ballard v Multiplex [2012] NSWSC 825

Ballard v Multiplex [2012] NSWSC 825

The circumstances justified the court otherwise ordering under UCPR r 42.15A and also meant that rejection of the Calderbank offer was not unreasonable. The offers were made after business hours during a short adjournment in a part-heard and fiercely contested trial, allowed only about four hearing days for consideration, coincided with Smart AJ raising and debating a possible reference out of issues, and proper assessment would have required substantial reflection on credibility and the evidence while Mr Ballard's legal team was under trial pressure. In those circumstances the offers were objectively a significant distraction from the tasks required for the proper presentation of the case.

Jurisdiction
Australia
Judgment Date
24 July 2012
Procedural Posture
Costs Application Following Dismissal of Plaintiff's Conspiracy Claim / Notices of Motion for Special Costs Orders Determined on the Papers
Outcome
Applications for special costs orders dismissed with costs.
Legal Topics
['indemnity Costs' 'offer of Compromise' 'calderbank Offer' 'discretion to Otherwise Order' 'rejection of Settlement Offer During Part Heard Trial']
['civil Procedure' 'costs'] ['indemnity Costs' 'offer of Compromise' 'calderbank Offer' 'discretion to Otherwise Order' 'rejection of Settlement Offer During Part Heard Trial']

Case Brief

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Procedural Posture

Costs Application Following Dismissal of Plaintiff's Conspiracy Claim / Notices of Motion for Special Costs Orders Determined on the Papers

Legal Issues

  1. 1 ["Whether the court should otherwise order under UCPR r 42.15A despite the plaintiff doing worse than the defendants' offer of compromise." "Whether it was unreasonable for the plaintiff to reject the defendants' Calderbank offer." 'Whether the timing and circumstances of the offers made during a part-heard, fiercely contested hearing justified refusing indemnity costs.']

Ratio Decidendi

The circumstances justified the court otherwise ordering under UCPR r 42.15A and also meant that rejection of the Calderbank offer was not unreasonable. The offers were made after business hours during a short adjournment in a part-heard and fiercely contested trial, allowed only about four hearing days for consideration, coincided with Smart AJ raising and debating a possible reference out of issues, and proper assessment would have required substantial reflection on credibility and the evidence while Mr Ballard's legal team was under trial pressure. In those circumstances the offers were objectively a significant distraction from the tasks required for the proper presentation of the case.

Court Disposition

Applications for special costs orders dismissed with costs.

Orders

  • ['Each of the notices of motion filed on 25 May 2012 for the first and second defendants, and for the third to fifth defendants, be dismissed with costs.' 'Those costs be set off against costs otherwise payable to the defendants.']