Gulab Khan v Matthew Rathjen (No 2) [2016] NSWDC 213

Gulab Khan v Matthew Rathjen (No 2) [2016] NSWDC 213

The three Offers of Compromise substantially complied with UCPR r 20.26 because each clearly offered to compromise the plaintiff's personal injury claim by payment of a specified sum plus costs, and acceptance would have allowed readily agreed consent orders disposing of the proceedings. The plaintiff obtained judgment more favourable than the offers, engaging UCPR r 42.14. However, because the plaintiff's claim was not fully particularised until November 2015, the Court exercised its discretion to otherwise order for the offers served on 30 March 2015 and 4 September 2015. The Court declined to otherwise order for the offer served on 2 December 2015 because by then the defendant was...

Jurisdiction
Australia
Judgment Date
15 September 2016
Procedural Posture
Civil Costs Application in Personal Injury Proceedings / Judgment on Costs After Principal Judgment and Hearing of the Plaintiff's Notice of Motion Filed on 21 July 2016 and the Defendant's Notice of Motion Filed on 12 August 2016
Outcome
Defendant ordered to pay the plaintiff's costs on an ordinary basis up to and including 2 December 2015 and on an indemnity basis from 3 December 2015, subject to exceptions for specified notices of motion.
Legal Topics
['offers of Compromise' 'indemnity Costs' 'validity of Offers Under UCPR R 20.26' 'discretion to Otherwise Order Under UCPR R 42.14' 'reserved Costs of Notice of Motion']
['civil Procedure' 'costs'] ['offers of Compromise' 'indemnity Costs' 'validity of Offers Under UCPR R 20.26' 'discretion to Otherwise Order Under UCPR R 42.14' 'reserved Costs of Notice of Motion']

Case Brief

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Procedural Posture

Civil Costs Application in Personal Injury Proceedings / Judgment on Costs After Principal Judgment and Hearing of the Plaintiff's Notice of Motion Filed on 21 July 2016 and the Defendant's Notice of Motion Filed on 12 August 2016

Legal Issues

  1. 1 ["Whether the plaintiff's three Offers of Compromise complied with UCPR r 20.26 despite not stating precise proposed orders for disposal of the claim." 'Whether the plaintiff was entitled to indemnity costs under UCPR r 42.14 because the judgment was no less favourable than the offers.' "Whether the Court should otherwise order under UCPR r 42.14(2) in respect of the first and second Offers of Compromise because of the state of the plaintiff's particularisation of his claim." "What order should be made for the reserved costs of the defendant's Notice of Motion filed on 4 December 2015."]

Ratio Decidendi

The three Offers of Compromise substantially complied with UCPR r 20.26 because each clearly offered to compromise the plaintiff's personal injury claim by payment of a specified sum plus costs, and acceptance would have allowed readily agreed consent orders disposing of the proceedings. The plaintiff obtained judgment more favourable than the offers, engaging UCPR r 42.14. However, because the plaintiff's claim was not fully particularised until November 2015, the Court exercised its discretion to otherwise order for the offers served on 30 March 2015 and 4 September 2015. The Court declined to otherwise order for the offer served on 2 December 2015 because by then the defendant was...

Court Disposition

Defendant ordered to pay the plaintiff's costs on an ordinary basis up to and including 2 December 2015 and on an indemnity basis from 3 December 2015, subject to exceptions for specified notices of motion.

Orders

  • ["That the defendant is to pay the plaintiff's costs of the proceedings on an ordinary basis up to and including 2 December 2015." "That the defendant is to pay the plaintiff's costs on an indemnity basis from 3 December 2015." "As an exception to orders 1 and 2 above, that there be no order as to costs of the...