Edwards v Devine (No 2) [2011] NSWDC 3

Edwards v Devine (No 2) [2011] NSWDC 3

The plaintiff obtained orders no less favourable than her offer because she obtained leave to proceed and an order that the defendant pay her costs, rather than paying her own costs and the defendant's costs as offered. The 28 day acceptance period was reasonable, the offer involved a real compromise, and rejection of the offer was unreasonable in light of the compelling case for leave. The defendant did not establish special circumstances displacing the UCPR r 42.14 presumption, and indemnity costs should run from 15 January 2011 because by 14 January 2011 the defendant had the plaintiff's evidence and could assess the application.

Jurisdiction
Australia
Judgment Date
31 January 2011
Procedural Posture
Costs Application Following Grant of Leave to Proceed Under S 109(1) of the Motor Accidents Act 1999 / Consequential Orders After Principal Judgment Granting the Plaintiff Leave to Proceed
Outcome
The plaintiff's application for indemnity costs succeeded in part as to timing.
Legal Topics
['indemnity Costs' 'offer of Compromise' 'calderbank Letter' 'leave to Proceed' 'ucpr R 42.14' 'civil Procedure Act 2005, S 56']
['costs' 'civil Procedure' 'motor Accidents Compensation'] ['indemnity Costs' 'offer of Compromise' 'calderbank Letter' 'leave to Proceed' 'ucpr R 42.14' 'civil Procedure Act 2005, S 56']

Case Brief

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Procedural Posture

Costs Application Following Grant of Leave to Proceed Under S 109(1) of the Motor Accidents Act 1999 / Consequential Orders After Principal Judgment Granting the Plaintiff Leave to Proceed

Legal Issues

  1. 1 ["Whether the defendant should pay the plaintiff's costs on the indemnity basis after rejecting the plaintiff's offer of compromise and Calderbank offer." 'Whether the plaintiff obtained an order no less favourable than the terms of her offer.' 'Whether any circumstances displaced the presumption in favour of indemnity costs under UCPR r 42.14.' 'From what date indemnity costs should take effect.']

Ratio Decidendi

The plaintiff obtained orders no less favourable than her offer because she obtained leave to proceed and an order that the defendant pay her costs, rather than paying her own costs and the defendant's costs as offered. The 28 day acceptance period was reasonable, the offer involved a real compromise, and rejection of the offer was unreasonable in light of the compelling case for leave. The defendant did not establish special circumstances displacing the UCPR r 42.14 presumption, and indemnity costs should run from 15 January 2011 because by 14 January 2011 the defendant had the plaintiff's evidence and could assess the application.

Court Disposition

The plaintiff's application for indemnity costs succeeded in part as to timing.

Orders

  • ["The defendant is to pay the plaintiff's costs of the summons on the ordinary basis until 14 January 2011, and on the indemnity basis from 15 January 2011."]