Dream Developments Pty Limited v Samuel Whitney [2012] NSWSC 108

Dream Developments Pty Limited v Samuel Whitney [2012] NSWSC 108

The plaintiff's offers were exclusive of costs because they involved no compromise on costs and left costs to be agreed or assessed according to the applicable process. The Practice Note did not make the offers inconsistent, uncertain or more favourable on costs. The defendant did not give the written notice required by UCPR 20.26(5) and, in any event, had sufficient information to consider the offers; the time for acceptance of the second offer was reasonable in light of the imminent trial. The Local Court erred in treating the offers as non-compliant and in refusing the costs consequences, so the costs order was quashed.

Jurisdiction
Australia
Judgment Date
23 February 2012
Procedural Posture
Application for Leave to Appeal From a Local Court Decision in Respect of Costs / Leave to Appeal Granted; Appeal Upheld
Outcome
Leave to appeal granted; appeal upheld; Local Court costs order quashed.
Legal Topics
['offers of Compromise' 'ucpr 20.26' 'exclusive of Costs' 'particulars for Offers of Compromise' 'calderbank Offers' 'indemnity Costs']
['civil Procedure' 'costs'] ['offers of Compromise' 'ucpr 20.26' 'exclusive of Costs' 'particulars for Offers of Compromise' 'calderbank Offers' 'indemnity Costs']

Case Brief

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Procedural Posture

Application for Leave to Appeal From a Local Court Decision in Respect of Costs / Leave to Appeal Granted; Appeal Upheld

Legal Issues

  1. 1 ["Whether the plaintiff's offers of compromise were exclusive of costs for the purposes of UCPR 20.26(2)." 'Whether references to costs as agreed or assessed, and the Local Court Practice Note, made the offers non-compliant, uncertain or ambiguous.' 'Whether the defendant had been given sufficient particulars and documents to enable full consideration of the offers under UCPR 20.26(4).' 'Whether the time allowed for acceptance of the second offer was reasonable.' 'Whether the offers could be treated as Calderbank offers if not effective under the UCPR.']

Ratio Decidendi

The plaintiff's offers were exclusive of costs because they involved no compromise on costs and left costs to be agreed or assessed according to the applicable process. The Practice Note did not make the offers inconsistent, uncertain or more favourable on costs. The defendant did not give the written notice required by UCPR 20.26(5) and, in any event, had sufficient information to consider the offers; the time for acceptance of the second offer was reasonable in light of the imminent trial. The Local Court erred in treating the offers as non-compliant and in refusing the costs consequences, so the costs order was quashed.

Court Disposition

Leave to appeal granted; appeal upheld; Local Court costs order quashed.

Orders

  • ['Leave to appeal is granted.' 'The appeal is upheld.' 'The order as to costs is quashed.' 'Within 7 days of the date of this judgment the parties are to file Minutes of Agreed Orders as to costs or, if they do not agree, written submissions on the appropriate orders.' 'The defendant is to pay the costs of the...