Vieira v O'Shea (No 2) [2012] NSWCA 121

Vieira v O'Shea (No 2) [2012] NSWCA 121

The trial offers did not justify indemnity costs because they were made jointly to the first respondent and other defendants whose interests were opposed, and were not capable of acceptance by the first respondent alone. The appeal offer of 6 June 2011 complied with UCPR r 20.26: it did not purport to be inclusive of costs, did not require the first respondent to abandon the cross-appeal, and was sufficiently certain. Because the appellant obtained orders exceeding the $180,000 offer, he was entitled to appeal costs on the ordinary basis up to and including 7 June 2011 and on an indemnity basis thereafter.

Jurisdiction
Australia
Judgment Date
04 May 2012
Procedural Posture
Procedural and Other Rulings; Costs Motion / On the Papers Motion to Vary Costs Orders Made After Appeal Allowed
Outcome
Motion allowed in part; costs orders varied; indemnity costs refused for the trial but granted for the appeal after 7 June 2011; no order as to costs of the motion.
Legal Topics
['offer of Compromise' 'calderbank Offer' 'indemnity Costs' 'ordinary Costs' 'uniform Civil Procedure Rules 2005 (nsw) R 20.26' 'appeal Costs']
['civil Procedure' 'costs' 'appeals'] ['offer of Compromise' 'calderbank Offer' 'indemnity Costs' 'ordinary Costs' 'uniform Civil Procedure Rules 2005 (nsw) R 20.26' 'appeal Costs']

Case Brief

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Procedural Posture

Procedural and Other Rulings; Costs Motion / On the Papers Motion to Vary Costs Orders Made After Appeal Allowed

Legal Issues

  1. 1 ["Whether the appellant's offers concerning the costs of the trial complied with UCPR r 20.26 or should have Calderbank costs consequences." 'Whether a Calderbank offer made jointly to several defendants with opposed interests was capable of acceptance by the first respondent alone.' "Whether the appellant's offer of compromise in the appeal complied with UCPR r 20.26 despite not stating that it was exclusive of costs and not identifying proposed orders." 'Whether the appellant bettered his appeal offer so as to justify indemnity costs of the appeal from 7 June 2011.']

Ratio Decidendi

The trial offers did not justify indemnity costs because they were made jointly to the first respondent and other defendants whose interests were opposed, and were not capable of acceptance by the first respondent alone. The appeal offer of 6 June 2011 complied with UCPR r 20.26: it did not purport to be inclusive of costs, did not require the first respondent to abandon the cross-appeal, and was sufficiently certain. Because the appellant obtained orders exceeding the $180,000 offer, he was entitled to appeal costs on the ordinary basis up to and including 7 June 2011 and on an indemnity basis thereafter.

Court Disposition

Motion allowed in part; costs orders varied; indemnity costs refused for the trial but granted for the appeal after 7 June 2011; no order as to costs of the motion.

Orders

  • ['Revoke orders (4) and (5) made on 5 March 2012 relating to the costs of the trial and the appeal.' 'Set aside the order made in the District Court on 4 May 2011 as to the costs of the trial as between the plaintiff and the first defendant.' "Order that the first defendant pay the plaintiff's costs of the...