Loumbos v Gray as a named partner of ClarkeKann (ABN 92 990 809 254) (No 2) [2021] NSWSC 1603

Loumbos v Gray as a named partner of ClarkeKann (ABN 92 990 809 254) (No 2) [2021] NSWSC 1603

The 9 October 2018 offer of compromise complied with the UCPR, r 42.15A applied, and the offer contained a sufficient element of compromise given the substantial costs inferred to have been incurred by the defendants before the offer. The plaintiff's inability to pay was not a reason to depart from r 42.15A, so the defendants were entitled to ordinary costs until 9 October 2018 and indemnity costs thereafter.

Jurisdiction
Australia
Judgment Date
09 December 2021
Procedural Posture
Costs / Argument on Costs After Judgment for the Defendants
Outcome
Order made in the terms sought by the defendants.
Legal Topics
['offers of Compromise' 'indemnity Costs' 'ordinary Costs' 'uniform Civil Procedure Rules 2005 (nsw), R 42.15 A' 'ability to Pay Costs']
['civil Procedure' 'costs'] ['offers of Compromise' 'indemnity Costs' 'ordinary Costs' 'uniform Civil Procedure Rules 2005 (nsw), R 42.15 A' 'ability to Pay Costs']

Case Brief

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Procedural Posture

Costs / Argument on Costs After Judgment for the Defendants

Legal Issues

  1. 1 ["Whether the defendants' 9 October 2018 offer of compromise complied with the Uniform Civil Procedure Rules 2005 (NSW) and engaged r 42.15A." 'Whether the offer contained a sufficient element of compromise.' "Whether the plaintiff's asserted inability to pay costs justified an order other than the order sought by the defendants."]

Ratio Decidendi

The 9 October 2018 offer of compromise complied with the UCPR, r 42.15A applied, and the offer contained a sufficient element of compromise given the substantial costs inferred to have been incurred by the defendants before the offer. The plaintiff's inability to pay was not a reason to depart from r 42.15A, so the defendants were entitled to ordinary costs until 9 October 2018 and indemnity costs thereafter.

Court Disposition

Order made in the terms sought by the defendants.

Orders

  • ["The plaintiff is to pay the defendants' costs of the proceedings on the ordinary basis until 9 October 2018 as agreed or assessed and thereafter on an indemnity basis as agreed or assessed."]