LCM Operations Pty Ltd v Rabah Enterprises Pty Ltd (No 3) [2023] NSWSC 869

LCM Operations Pty Ltd v Rabah Enterprises Pty Ltd (No 3) [2023] NSWSC 869

The defendant did not show good reason to displace the usual indemnity costs consequence under rule 42.14. The plaintiff had provided the documents and particulars available to it; any unanswered matters were within the knowledge of Rabah or persons and records available to it, so reasonable inquiries could have been made. The $2 million offer against a $14.8 million claim involved an objective element of compromise and its tactical costs-protection purpose did not make it non-genuine. The later amendments did not substantially change the plaintiff's case because they largely reflected matters pleaded by Rabah and the alternative joint venture and estoppel claims added no material factual...

Jurisdiction
Australia
Judgment Date
28 July 2023
Procedural Posture
Costs Application / On the Papers After Judgment for the Plaintiff; Application for Indemnity Costs Under Rule 42.14 of the Uniform Civil Procedure Rules 2005 (nsw) Following Non Acceptance of an Offer of Compromise
Outcome
Indemnity costs ordered.
Legal Topics
['offer of Compromise' 'indemnity Costs' 'rule 20.26(4) Notice' 'genuine Compromise' 'change in Case After Offer' 'apportionment of Costs']
['civil Procedure' 'costs' 'commercial Litigation'] ['offer of Compromise' 'indemnity Costs' 'rule 20.26(4) Notice' 'genuine Compromise' 'change in Case After Offer' 'apportionment of Costs']

Case Brief

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Procedural Posture

Costs Application / On the Papers After Judgment for the Plaintiff; Application for Indemnity Costs Under Rule 42.14 of the Uniform Civil Procedure Rules 2005 (nsw) Following Non Acceptance of an Offer of Compromise

Legal Issues

  1. 1 ['Whether the defendant established good reason for the Court to otherwise order against indemnity costs after the plaintiff obtained a judgment no less favourable than its offer of compromise.' "Whether the defendant lacked sufficient particulars or documents necessary to fully consider the plaintiff's offer of compromise under rule 20.26(4)." 'Whether an offer to accept $2 million in respect of a $14.8 million claim was a genuine compromise or merely a tactical offer for costs protection.' "Whether amendments to the plaintiff's case after the offer expired were a substantial change justifying refusal of indemnity costs." 'Whether costs should be apportioned because the plaintiff did not succeed on alternative joint venture or estoppel claims.']

Ratio Decidendi

The defendant did not show good reason to displace the usual indemnity costs consequence under rule 42.14. The plaintiff had provided the documents and particulars available to it; any unanswered matters were within the knowledge of Rabah or persons and records available to it, so reasonable inquiries could have been made. The $2 million offer against a $14.8 million claim involved an objective element of compromise and its tactical costs-protection purpose did not make it non-genuine. The later amendments did not substantially change the plaintiff's case because they largely reflected matters pleaded by Rabah and the alternative joint venture and estoppel claims added no material factual...

Court Disposition

Indemnity costs ordered.

Orders

  • ["Pursuant to rule 42.14(2) of the Uniform Civil Procedure Rules 2005 (NSW), vary order 3 made on 2 June 2023 such that the defendant is to pay the plaintiff's costs of the proceedings on the following bases: costs assessed on the ordinary basis up to 7 April 2021; and costs assessed on an indemnity basis on and...