H20 Learning Pty Ltd v Swim Loops Pty Ltd t/as Jump Swim Schools & Ors (No. 2) [2019] NSWDC 207

H20 Learning Pty Ltd v Swim Loops Pty Ltd t/as Jump Swim Schools & Ors (No. 2) [2019] NSWDC 207

The plaintiff's refusal of the Calderbank offer was not unreasonable due to deficiency of evidence about its reasonableness. However, the offer of compromise made under rule 20.26 on 18 April 2019 was reasonable and open for a sufficient period; the defendants obtained a more favourable result than the offer. As no sufficient basis existed for the court to otherwise order due to alleged conduct of the defendants, the costs order should be varied: the plaintiff is to pay defendants' costs on the ordinary basis up to 18 April 2019 and on the indemnity basis from 19 April 2019.

Parties
Plaintiff: H20 Learning Pty Ltd; First Defendant: Swim Loops Pty Ltd t/as Jump! Swim Schools; Second Defendant: Mr Campbell; Third Defendant: Mr Rice; Fourth Defendant: Mr Hurry
Jurisdiction
Australia
Judgment Date
28 May 2019
Procedural Posture
Civil / Post Judgment Costs Application
Outcome
Plaintiff to pay defendants' costs of proceedings up to 18 April 2019 on ordinary basis and from 19 April 2019 on indemnity basis; previous costs order varied.
Legal Topics
Costs, Offers of Compromise, Calderbank Offers, Indemnity Costs, Uniform Civil Procedure Rules
Civil Procedure Costs Offers of Compromise Calderbank Offers Indemnity Costs Uniform Civil Procedure Rules

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 2 Authorities cited 5 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

H20 Learning Pty Ltd

Plaintiff

Swim Loops Pty Ltd t/as Jump! Swim Schools

First Defendant

Mr Campbell

Second Defendant

Mr Rice

Third Defendant

Mr Hurry

Fourth Defendant

Procedural Posture

Civil / Post Judgment Costs Application

Legal Issues

  1. 1 Whether plaintiff's rejection of settlement offers (Calderbank and rule 20.26 offer) was unreasonable for costs purposes
  2. 2 Whether costs should be paid on an indemnity basis after the date of rule 20.26 offer
  3. 3 Whether defendants unnecessarily increased the costs warranting a departure from usual costs orders

Ratio Decidendi

The plaintiff's refusal of the Calderbank offer was not unreasonable due to deficiency of evidence about its reasonableness. However, the offer of compromise made under rule 20.26 on 18 April 2019 was reasonable and open for a sufficient period; the defendants obtained a more favourable result than the offer. As no sufficient basis existed for the court to otherwise order due to alleged conduct of the defendants, the costs order should be varied: the plaintiff is to pay defendants' costs on the ordinary basis up to 18 April 2019 and on the indemnity basis from 19 April 2019.

Court Disposition

Plaintiff to pay defendants' costs of proceedings up to 18 April 2019 on ordinary basis and from 19 April 2019 on indemnity basis; previous costs order varied.

Orders

  • The Plaintiff is to pay the Defendants' costs of the proceedings up to 18 April 2019 on the ordinary basis.
  • The Plaintiff is to pay the Defendants' costs of the proceedings from 19 April 2019 on an indemnity basis.