Leslie Gaskin v Matthew Ollerenshaw [2010] NSWSC 874

Leslie Gaskin v Matthew Ollerenshaw [2010] NSWSC 874

The plaintiff acted reasonably in refusing the Calderbank offer because it provided no monetary compensation, only party and party costs, and the plaintiff’s claim had substantial quantum ($1.3M). However, the failure to accept the later offer of compromise for $500,000 plus costs under UCPR, r 20.26, was unjustified absent any evidence or submissions by the plaintiff demonstrating exceptional circumstances; therefore, the defendant is entitled to indemnity costs from 30 July 2009.

Jurisdiction
Australia
Judgment Date
06 August 2010
Procedural Posture
Consequential Orders / Post Judgment Application for Indemnity Costs
Outcome
Order for plaintiff to pay defendant's costs: ordinary basis up to and including 29 July 2009, indemnity basis from 30 July 2009.
Legal Topics
['costs' 'offer of Compromise' 'calderbank Letter' 'indemnity Costs']
['civil Procedure'] ['costs' 'offer of Compromise' 'calderbank Letter' 'indemnity Costs']

Case Brief

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Procedural Posture

Consequential Orders / Post Judgment Application for Indemnity Costs

Legal Issues

  1. 1 ["Whether the plaintiff's refusal of the Calderbank offer was unreasonable" "Whether exceptional circumstances existed for the Court to 'otherwise order' under UCPR, r 42.15A in relation to the offer of compromise"]

Ratio Decidendi

The plaintiff acted reasonably in refusing the Calderbank offer because it provided no monetary compensation, only party and party costs, and the plaintiff’s claim had substantial quantum ($1.3M). However, the failure to accept the later offer of compromise for $500,000 plus costs under UCPR, r 20.26, was unjustified absent any evidence or submissions by the plaintiff demonstrating exceptional circumstances; therefore, the defendant is entitled to indemnity costs from 30 July 2009.

Court Disposition

Order for plaintiff to pay defendant's costs: ordinary basis up to and including 29 July 2009, indemnity basis from 30 July 2009.

Orders

  • ['Vacate order 2 made on 16 July 2010.' "Order that the plaintiff pay the defendant's costs assessed on the ordinary basis up to and including 29 July 2009." "Order that the plaintiff pay the defendant's costs, including the costs of this application, assessed on an indemnity basis from 30 July 2009."]