Seary v White (No 5 - Costs) [2008] NSWDC 21

Seary v White (No 5 - Costs) [2008] NSWDC 21

The defendant's offer of compromise was valid because, despite Clause 2b, there was no evidence of any relevant non-attendance or deductible costs and the plaintiff knew the offer was $600,000.00 plus costs; it was also left open for a reasonable period in the circumstances. The r 42.15 costs presumption therefore applied because the judgment was less favourable than the offer. However, the defendant's failure to serve the additional medical reports of Dr O'Neill and Dr Reid in a timely way caused the second adjournment and amounted to disentitling conduct justifying a limited departure from the presumption for additional costs caused by that adjournment.

Jurisdiction
Australia
Judgment Date
21 February 2008
Procedural Posture
Civil Motor Accident Negligence Proceedings Limited at Trial to Assessment of Damages / Costs Determination After Verdict and Judgment for the Plaintiff
Outcome
Costs ordered partly in favour of each party; defendant obtained substantial success on the costs applications, subject to a limited adjustment for the second adjournment.
Legal Topics
['offer of Compromise' 'indemnity Costs' 'ordinary Costs' 'reasonable Time for Acceptance' 'displacement of Costs Presumption' 'calderbank Offer']
['civil Procedure' 'costs' 'motor Accidents Compensation'] ['offer of Compromise' 'indemnity Costs' 'ordinary Costs' 'reasonable Time for Acceptance' 'displacement of Costs Presumption' 'calderbank Offer']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Civil Motor Accident Negligence Proceedings Limited at Trial to Assessment of Damages / Costs Determination After Verdict and Judgment for the Plaintiff

Legal Issues

  1. 1 ['Whether the offer of compromise was exclusive of costs under r 20.26(2).' 'Whether the offer of compromise was left open for such time as was reasonable in the circumstances under r 20.26(7)(b).' 'If there was a valid offer of compromise, whether conduct on the part of the defendant justified displacement of the presumption under r 42.15(2) such that some other order should be made.' 'What orders should be made for the costs applications.']

Ratio Decidendi

The defendant's offer of compromise was valid because, despite Clause 2b, there was no evidence of any relevant non-attendance or deductible costs and the plaintiff knew the offer was $600,000.00 plus costs; it was also left open for a reasonable period in the circumstances. The r 42.15 costs presumption therefore applied because the judgment was less favourable than the offer. However, the defendant's failure to serve the additional medical reports of Dr O'Neill and Dr Reid in a timely way caused the second adjournment and amounted to disentitling conduct justifying a limited departure from the presumption for additional costs caused by that adjournment.

Court Disposition

Costs ordered partly in favour of each party; defendant obtained substantial success on the costs applications, subject to a limited adjustment for the second adjournment.

Orders

  • ["Defendant to pay the plaintiff's costs of the substantive proceedings, on the ordinary basis, incurred before 11.00am on 20 June 2007, together with any additional costs incurred by her by reason of the adjournment of the hearing from 24 August to 14 November 2007." "Plaintiff to pay defendant's costs of the...