Sampson v Prest & O'Connor Pty Ltd & Anor (No.3) [2004] NSWSC 568

Sampson v Prest & O'Connor Pty Ltd & Anor (No.3) [2004] NSWSC 568

The second defendant remained entitled to party and party costs because, although calling Mr Dunn at the arbitration may well have avoided a rehearing, his evidence had not been intentionally withheld for an ulterior forensic purpose but omitted on a bona fide view that it would not advance the arbitration. The second defendant was not entitled to indemnity costs because its offer to contribute was conditional on an open-ended or uncertain indemnity and it was not reasonable to expect the first defendant to accept it. The plaintiff was entitled to indemnity costs from 8 August 2001 because the offer of compromise was not accepted, the plaintiff recovered more than the offer, and there was...

Jurisdiction
Australia
Judgment Date
30 June 2004
Procedural Posture
Costs in Common Law Personal Injury Negligence Proceedings / Judgment (no.3) on Costs Following Trial Judgment
Outcome
Costs ordered against the first defendant in favour of the plaintiff and the second defendant.
Legal Topics
['indemnity Costs' 'party and Party Costs' 'offer of Compromise' 'offer to Contribute' 'calderbank Letter' 'arbitration Rehearing Costs' 'failure to Call Evidence at Arbitration']
['civil Procedure' 'costs' 'torts'] ['indemnity Costs' 'party and Party Costs' 'offer of Compromise' 'offer to Contribute' 'calderbank Letter' 'arbitration Rehearing Costs' 'failure to Call Evidence at Arbitration']

Case Brief

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Procedural Posture

Costs in Common Law Personal Injury Negligence Proceedings / Judgment (no.3) on Costs Following Trial Judgment

Legal Issues

  1. 1 ['Whether the successful second defendant should be deprived of costs because it did not call Mr Dunn at the arbitration hearing.' 'Whether the second defendant was entitled to indemnity costs on the basis that its offer to contribute operated as a Calderbank letter.' "Whether the plaintiff was entitled to indemnity costs from 8 August 2001 following non-acceptance of the plaintiff's offer of compromise." "Whether changes in the plaintiff's pleaded claim or medical evidence justified limiting the plaintiff to party and party costs."]

Ratio Decidendi

The second defendant remained entitled to party and party costs because, although calling Mr Dunn at the arbitration may well have avoided a rehearing, his evidence had not been intentionally withheld for an ulterior forensic purpose but omitted on a bona fide view that it would not advance the arbitration. The second defendant was not entitled to indemnity costs because its offer to contribute was conditional on an open-ended or uncertain indemnity and it was not reasonable to expect the first defendant to accept it. The plaintiff was entitled to indemnity costs from 8 August 2001 because the offer of compromise was not accepted, the plaintiff recovered more than the offer, and there was...

Court Disposition

Costs ordered against the first defendant in favour of the plaintiff and the second defendant.

Orders

  • ["The first defendant to pay the plaintiff's costs of the proceedings on an indemnity basis from 8 August 2001 and on a party and party basis prior to that date." "The first defendant to pay the second defendant's costs of the proceedings on a party and party basis."]