Melchior and Ors v Sydney Adventist Hospital Ltd and Anor (No 2) [2009] NSWSC 65

Melchior and Ors v Sydney Adventist Hospital Ltd and Anor (No 2) [2009] NSWSC 65

The plaintiffs did not establish exceptional circumstances to displace the operation of r 42.15A; the second defendant's 'walk away' offer was genuine and reasonable, and plaintiffs should have appreciated the difficulties in their case at the time of the offer. The second defendant is entitled to costs on an indemnity basis from 14 March 2008.

Parties
Plaintiff: Elizabeth Melchior; Plaintiff: Stephanie Melchior by her next friend Elizabeth Melchior; Plaintiff: Gerard Melchior by his next friend Elizabeth Melchior; Plaintiff: Hugh Melchior by his next friend Elizabeth Melchior; Plaintiff: Beverley Melchior; First Defendant: Sydney Adventist Hospital Ltd; Second Defendant: Doctor Scott Newman
Jurisdiction
Australia
Judgment Date
20 February 2009
Procedural Posture
Costs Application / Post Judgment, Consequential Orders
Outcome
Costs orders against plaintiffs
Legal Topics
Costs, Offer of Compromise, Indemnity Costs
Civil Procedure Costs Offer of Compromise Indemnity Costs

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 3 Authorities cited 9 Party arguments 2
Sign in to unlock

Parties

Elizabeth Melchior

Plaintiff

Stephanie Melchior by her next friend Elizabeth Melchior

Plaintiff

Gerard Melchior by his next friend Elizabeth Melchior

Plaintiff

Hugh Melchior by his next friend Elizabeth Melchior

Plaintiff

Beverley Melchior

Plaintiff

Sydney Adventist Hospital Ltd

First Defendant

Doctor Scott Newman

Second Defendant

Procedural Posture

Costs Application / Post Judgment, Consequential Orders

Legal Issues

  1. 1 Whether the second defendant is entitled to costs on an indemnity basis pursuant to Part 42 r 42.15A of the Uniform Civil Procedure Rules
  2. 2 Whether exceptional circumstances exist to displace entitlement to indemnity costs under r 42.15A

Ratio Decidendi

The plaintiffs did not establish exceptional circumstances to displace the operation of r 42.15A; the second defendant's 'walk away' offer was genuine and reasonable, and plaintiffs should have appreciated the difficulties in their case at the time of the offer. The second defendant is entitled to costs on an indemnity basis from 14 March 2008.

Court Disposition

Costs orders against plaintiffs

Orders

  • Plaintiffs are to pay the first defendant's costs, as agreed or assessed.
  • Plaintiffs are to pay the second defendant's costs, as agreed or assessed, up to and including 13 March 2008 and thereafter on an indemnity basis.