James v The Owners – Strata Plan No 11478 (No 2) [2016] NSWSC 1701

James v The Owners – Strata Plan No 11478 (No 2) [2016] NSWSC 1701

The offer made by the second and third defendants on 1 April 2016 complied with the requirements for a valid offer of compromise, was open for a reasonable period, was not accepted, and the second and third defendants obtained dismissal of the claims against them, which was no less favourable than the offer. Although it was a "walk away" offer, it gave up a substantial costs claim after more than two years of proceedings and therefore contained a significant element of compromise rather than being derisory. The plaintiff did not show any sufficient reason to order otherwise, so UCPR r 42.15A required ordinary costs up to 1 April 2016 and indemnity costs from 2 April 2016.

Jurisdiction
Australia
Judgment Date
01 December 2016
Procedural Posture
Costs / Notice of Motion by the Second and Third Defendants to Vary the Costs Order After Dismissal of the Amended Statement of Claim; Determined on the Papers
Outcome
Order made for indemnity costs pursuant to UCPR r 42.15A.
Legal Topics
['offers of Compromise' 'indemnity Costs' 'walk Away Offer' 'variation of Costs Order' 'uniform Civil Procedure Rules 2005 (nsw) R 42.15 A']
['civil Procedure' 'costs'] ['offers of Compromise' 'indemnity Costs' 'walk Away Offer' 'variation of Costs Order' 'uniform Civil Procedure Rules 2005 (nsw) R 42.15 A']

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 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Costs / Notice of Motion by the Second and Third Defendants to Vary the Costs Order After Dismissal of the Amended Statement of Claim; Determined on the Papers

Legal Issues

  1. 1 ['Whether the second and third defendants\' unaccepted "walk away" offer of compromise engaged UCPR r 42.15A.' 'Whether the second and third defendants obtained an order no less favourable than the terms of the offer.' 'Whether the Court should order otherwise than the prima facie indemnity costs consequences under UCPR r 42.15A(2).']

Ratio Decidendi

The offer made by the second and third defendants on 1 April 2016 complied with the requirements for a valid offer of compromise, was open for a reasonable period, was not accepted, and the second and third defendants obtained dismissal of the claims against them, which was no less favourable than the offer. Although it was a "walk away" offer, it gave up a substantial costs claim after more than two years of proceedings and therefore contained a significant element of compromise rather than being derisory. The plaintiff did not show any sufficient reason to order otherwise, so UCPR r 42.15A required ordinary costs up to 1 April 2016 and indemnity costs from 2 April 2016.

Court Disposition

Order made for indemnity costs pursuant to UCPR r 42.15A.

Orders

  • ['That order 2 made on 3 November 2016 be varied so that it no longer applies to the second and third defendants.' "That the plaintiff pay the second and third defendants' costs of the proceedings up to and including 1 April 2016 on the ordinary basis, and from 2 April 2016 on an indemnity basis."]