Lorenzato v Burwood Council (Costs) [2021] NSWSC 266

Lorenzato v Burwood Council (Costs) [2021] NSWSC 266

The cross-defendant's offer to accept judgment on the cross-claim with no order for costs was made after substantial work had been done, including inspection of extensive discovered documents, and involved forgoing significant party/party costs. In circumstances where the cross-claim was conspicuously unmeritorious and bordered upon vexatious and irresponsible, the offer was objectively calculated to achieve a compromise and was not contemptuous or derisory. There was no sufficient reason to deny the cross-defendant the prima facie entitlement to indemnity costs under r 42.15A(2). The plaintiff did not press her indemnity costs motion and did not oppose paying the defendants' costs of...

Jurisdiction
Australia
Judgment Date
22 March 2021
Procedural Posture
Costs / On the Papers Determination of Post Judgment Costs Motions
Outcome
Cross-defendant's application for indemnity costs granted; plaintiff's notice of motion dismissed.
Legal Topics
['indemnity Costs' 'offer of Compromise' 'calderbank Offer' 'costs of Cross Claim' 'dismissal of Notice of Motion']
['civil Procedure' 'costs'] ['indemnity Costs' 'offer of Compromise' 'calderbank Offer' 'costs of Cross Claim' 'dismissal of Notice of Motion']

Case Brief

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Procedural Posture

Costs / On the Papers Determination of Post Judgment Costs Motions

Legal Issues

  1. 1 ["Whether the cross-defendant's offer of compromise contained a sufficient real or substantive element of compromise to justify indemnity costs from 14 March 2018." 'Whether the Court should otherwise order against the prima facie costs consequence under r 42.15A(2) of the Uniform Civil Procedure Rules 2005 (NSW).' "What orders should be made on the plaintiff's unpressed notice of motion seeking indemnity costs."]

Ratio Decidendi

The cross-defendant's offer to accept judgment on the cross-claim with no order for costs was made after substantial work had been done, including inspection of extensive discovered documents, and involved forgoing significant party/party costs. In circumstances where the cross-claim was conspicuously unmeritorious and bordered upon vexatious and irresponsible, the offer was objectively calculated to achieve a compromise and was not contemptuous or derisory. There was no sufficient reason to deny the cross-defendant the prima facie entitlement to indemnity costs under r 42.15A(2). The plaintiff did not press her indemnity costs motion and did not oppose paying the defendants' costs of...

Court Disposition

Cross-defendant's application for indemnity costs granted; plaintiff's notice of motion dismissed.

Orders

  • ["The cross-defendant's costs pursuant to order 6 made on 23 November 2020 are to be assessed on the ordinary basis up to and including 13 March 2018 and on the indemnity basis from and including 14 March 2018." "The plaintiff's notice of motion filed 11 December 2020 is dismissed." "The plaintiff to pay the...