Liu v Cooper [2017] NSWSC 1706

Liu v Cooper [2017] NSWSC 1706

Mr Cooper was entitled to indemnity costs because the Offer of Compromise enlivened UCPR r 42.15A, the walk away offer involved a real and genuine compromise in the circumstances of a weak appeal, and there was no basis to otherwise order. Independently, the 30 August 2016 Calderbank offer involved genuine and substantial compromises and Mr Liu's refusal of it was unreasonable, including because the appeal issues were clear, the time for acceptance was sufficient, the offer was clear, and Mr Liu had poor prospects of success.

Jurisdiction
Australia
Judgment Date
07 December 2017
Procedural Posture
Costs Application in a Supreme Court Local Court Appeal / On the Papers After Dismissal of the Amended Summons; Application for Indemnity Costs
Outcome
Mr Cooper's application for indemnity costs was granted.
Legal Topics
['indemnity Costs' 'calderbank Offers' 'offers of Compromise' 'local Court Appeal']
['costs' 'civil Procedure'] ['indemnity Costs' 'calderbank Offers' 'offers of Compromise' 'local Court Appeal']

Case Brief

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Procedural Posture

Costs Application in a Supreme Court Local Court Appeal / On the Papers After Dismissal of the Amended Summons; Application for Indemnity Costs

Legal Issues

  1. 1 ['Whether Mr Cooper was entitled to indemnity costs after making an Offer of Compromise under the Uniform Civil Procedure Rules 2005 (NSW) that was not accepted and obtaining an outcome no less favourable than the offer.' 'Whether the Offer of Compromise involved a real and genuine element of compromise, including where it was a walk away offer.' "Whether Mr Liu's refusal of the Calderbank offer made on 30 August 2016 was unreasonable so as to warrant indemnity costs from that date."]

Ratio Decidendi

Mr Cooper was entitled to indemnity costs because the Offer of Compromise enlivened UCPR r 42.15A, the walk away offer involved a real and genuine compromise in the circumstances of a weak appeal, and there was no basis to otherwise order. Independently, the 30 August 2016 Calderbank offer involved genuine and substantial compromises and Mr Liu's refusal of it was unreasonable, including because the appeal issues were clear, the time for acceptance was sufficient, the offer was clear, and Mr Liu had poor prospects of success.

Court Disposition

Mr Cooper's application for indemnity costs was granted.

Orders

  • ["Further to Order (2) of 2 November 2017, Mr Liu is to pay Mr Cooper's costs on an ordinary basis to 30 August 2016." "Further to Order (2) of 2 November 2017, Mr Liu is to pay Mr Cooper's costs on an indemnity basis thereafter, including costs of these proceedings."]