Orcher v Bowcliff Pty Ltd [2012] NSWSC 1429

Orcher v Bowcliff Pty Ltd [2012] NSWSC 1429

The offers of compromise made by Mr Orcher to Bowcliff and Mr Keough were valid despite being expressed as judgment sums plus costs as agreed or assessed, because that wording did not operate inconsistently with the relevant costs rules. Mr Orcher obtained a result more favourable than the offers, and the procedural history and amendments did not disentitle him to the usual indemnity costs consequences. A stay pending appeal was granted because the affidavit evidence from an officer of the Court was understood as a warranty that Bowcliff and Mr Keough were covered by insurance sufficient to satisfy the judgment, interest and costs if their appeals failed, and the stay was conditioned on...

Jurisdiction
Australia
Judgment Date
23 November 2012
Procedural Posture
Consequential Orders as to Costs and Stay Pending Appeal / After Publication of Reasons for Judgment in Orcher V Bowcliff Pty Ltd [2012] NSWSC 1088
Outcome
Indemnity costs ordered against the first and third defendants from the dates of the respective offers of compromise, and execution of the judgment against them stayed pending any appeals on terms.
Legal Topics
['offers of Compromise' 'indemnity Costs' 'ucpr 20.26' 'calderbank Offers' 'stay of Judgment Pending Appeal' 'insurance Indemnity']
['civil Procedure' 'costs' 'judgment and Orders'] ['offers of Compromise' 'indemnity Costs' 'ucpr 20.26' 'calderbank Offers' 'stay of Judgment Pending Appeal' 'insurance Indemnity']

Case Brief

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Procedural Posture

Consequential Orders as to Costs and Stay Pending Appeal / After Publication of Reasons for Judgment in Orcher V Bowcliff Pty Ltd [2012] NSWSC 1088

Legal Issues

  1. 1 ["Whether the plaintiff's offers of compromise were valid offers under UCPR 20.26 despite being expressed as judgment sums plus costs as agreed or assessed" 'If the offers were not valid under the rules, whether they could operate as Calderbank offers' "Whether the plaintiff's conduct of the proceedings disentitled him to indemnity costs" 'Whether execution of the judgment against the first and third defendants should be stayed pending foreshadowed appeals to the Court of Appeal']

Ratio Decidendi

The offers of compromise made by Mr Orcher to Bowcliff and Mr Keough were valid despite being expressed as judgment sums plus costs as agreed or assessed, because that wording did not operate inconsistently with the relevant costs rules. Mr Orcher obtained a result more favourable than the offers, and the procedural history and amendments did not disentitle him to the usual indemnity costs consequences. A stay pending appeal was granted because the affidavit evidence from an officer of the Court was understood as a warranty that Bowcliff and Mr Keough were covered by insurance sufficient to satisfy the judgment, interest and costs if their appeals failed, and the stay was conditioned on...

Court Disposition

Indemnity costs ordered against the first and third defendants from the dates of the respective offers of compromise, and execution of the judgment against them stayed pending any appeals on terms.

Orders

  • ["Order the first defendant to pay the plaintiff's costs on the ordinary basis up to and including 7 September 2010 and thereafter on an indemnity basis." "Order the third defendant to pay the plaintiff's costs on the ordinary basis up to and including 17 December 2010 and thereafter on an indemnity basis." 'Stay...