Duffin v Mount Arthur Coal Pty Ltd (No 2) [2020] NSWSC 790

Duffin v Mount Arthur Coal Pty Ltd (No 2) [2020] NSWSC 790

The offer of compromise was clear: it offered to compromise the proceedings for $1,365,000 plus costs as agreed or assessed and remained open for 28 days. Expressing the offer as plus costs did not offend UCPR 20.26(2)(c), and the failure to identify the claim or proposed orders for disposal did not render the offer inefficacious because it otherwise complied with UCPR 20.26. The plaintiff obtained a judgment no less favourable than the offer, and the defendant was in a position to make a realistic assessment of the offer when it was made. The defendant did not persuade the Court to make an otherwise order, so the costs order was varied to give the plaintiff ordinary costs up to and...

Jurisdiction
Australia
Judgment Date
23 June 2020
Procedural Posture
Costs / Application on the Papers to Vary the Costs Order Pursuant to S 96 of the Civil Procedure Act 2005 (nsw) After Judgment Had Been Entered for the Plaintiff
Outcome
Plaintiff's application to vary the costs order was granted.
Legal Topics
['offer of Compromise' 'indemnity Costs' 'ordinary Costs' 'variation of Costs Order' 'ucpr 20.26' 'ucpr 42.14']
['civil Procedure' 'costs'] ['offer of Compromise' 'indemnity Costs' 'ordinary Costs' 'variation of Costs Order' 'ucpr 20.26' 'ucpr 42.14']

Case Brief

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Procedural Posture

Costs / Application on the Papers to Vary the Costs Order Pursuant to S 96 of the Civil Procedure Act 2005 (nsw) After Judgment Had Been Entered for the Plaintiff

Legal Issues

  1. 1 ["Whether the plaintiff's offer of compromise was ineffective because it did not identify the claim or proposed orders for its disposal under UCPR 20.26(2)(a)." 'Whether the offer was invalid because it was expressed as a sum plus costs as agreed or assessed.' 'Whether, because the plaintiff obtained judgment no less favourable than the offer, she was entitled to indemnity costs under UCPR 42.14.' 'Whether the Court should exercise its discretion to order otherwise and limit costs to the ordinary basis.']

Ratio Decidendi

The offer of compromise was clear: it offered to compromise the proceedings for $1,365,000 plus costs as agreed or assessed and remained open for 28 days. Expressing the offer as plus costs did not offend UCPR 20.26(2)(c), and the failure to identify the claim or proposed orders for disposal did not render the offer inefficacious because it otherwise complied with UCPR 20.26. The plaintiff obtained a judgment no less favourable than the offer, and the defendant was in a position to make a realistic assessment of the offer when it was made. The defendant did not persuade the Court to make an otherwise order, so the costs order was varied to give the plaintiff ordinary costs up to and...

Court Disposition

Plaintiff's application to vary the costs order was granted.

Orders

  • ['The costs order made on 16 March 2020 that the defendant pay the plaintiff\'s costs on an ordinary basis is varied by adding the words "up to and including 30 August 2018" and then "as from 31 January 2018 on an indemnity basis."']