Barrett v Lets Go Adventures Pty Ltd (No. 2) [2016] NSWDC 367

Barrett v Lets Go Adventures Pty Ltd (No. 2) [2016] NSWDC 367

The plaintiff was not entitled to indemnity costs. The Calderbank offer did not justify indemnity costs because, although it was sufficiently clear and the defendant knew what was meant, it required the defendant's capitulation on liability and contributory negligence with costs forthwith and did not amount to a genuine compromise; there were also remaining issues and the lateness and limited time for acceptance militated against finding rejection unreasonable. Section 341 Legal Profession Act 2004 (NSW) did not apply because the defence was not entirely misconceived or hopeless, and the circumstances arose from forensic tactics by the defendant that went awry rather than conduct...

Jurisdiction
Australia
Judgment Date
22 December 2016
Procedural Posture
Personal Injury Proceedings; Costs Application / Post Judgment Application for Indemnity Costs and Costs Orders After Trial
Outcome
Plaintiff's application for indemnity costs refused; defendant ordered to pay the plaintiff's costs of all applications before the court that day, including the indemnity costs application.
Legal Topics
['indemnity Costs' 'calderbank Offer' 'offer of Compromise' 'legal Profession Act 2004 (nsw), S 341' 'costs Cap in Personal Injury Proceedings' 'stay of Execution']
['civil Procedure' 'costs' 'personal Injury'] ['indemnity Costs' 'calderbank Offer' 'offer of Compromise' 'legal Profession Act 2004 (nsw), S 341' 'costs Cap in Personal Injury Proceedings' 'stay of Execution']

Case Brief

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Procedural Posture

Personal Injury Proceedings; Costs Application / Post Judgment Application for Indemnity Costs and Costs Orders After Trial

Legal Issues

  1. 1 ['Whether the defendant should pay indemnity costs because it did not accept a Calderbank offer made during the trial after amendment of the statement of claim.' 'Whether the offer was a valid and genuine compromise and whether rejection of it was unreasonable.' "Whether indemnity costs should be ordered under s 341 Legal Profession Act 2004 (NSW) on the basis of the defendant's conduct of the proceedings." 'What costs order should be made for the applications before the court.']

Ratio Decidendi

The plaintiff was not entitled to indemnity costs. The Calderbank offer did not justify indemnity costs because, although it was sufficiently clear and the defendant knew what was meant, it required the defendant's capitulation on liability and contributory negligence with costs forthwith and did not amount to a genuine compromise; there were also remaining issues and the lateness and limited time for acceptance militated against finding rejection unreasonable. Section 341 Legal Profession Act 2004 (NSW) did not apply because the defence was not entirely misconceived or hopeless, and the circumstances arose from forensic tactics by the defendant that went awry rather than conduct...

Court Disposition

Plaintiff's application for indemnity costs refused; defendant ordered to pay the plaintiff's costs of all applications before the court that day, including the indemnity costs application.

Orders

  • ["Plaintiff's application for indemnity costs refused." "For the reasons set out in paragraph 38 of this judgment, the defendant is to pay the plaintiff's costs of all applications before the court today, including the application for indemnity costs."]