Jackson v KAH Australia Pty Ltd t/as Bayview Boulevard Sydney (No 2) [2018] NSWSC 204

Jackson v KAH Australia Pty Ltd t/as Bayview Boulevard Sydney (No 2) [2018] NSWSC 204

The offer of compromise served by KAH on 15 June 2015 complied with UCPR 20.26 and was a valid offer of compromise; it was unreasonable for the plaintiff to reject it in the circumstances. Therefore, by operation of UCPR 42.15, costs should be ordered in favour of the plaintiff on an ordinary basis up to and including 15 June 2015, and in favour of KAH assessed on an indemnity basis from 16 June 2015. It is appropriate to fix the first defendant's costs at a gross sum of $140,000. Shine Lawyers has an equitable lien over the judgment sum of $94,533.05 and its solicitor/client costs for acting for the plaintiff. No set off or stay of judgment is ordered.

Jurisdiction
Australia
Judgment Date
28 February 2018
Procedural Posture
Costs Hearing Following Substantive Judgment in Personal Injuries Claim / Post Judgment Costs Application
Outcome
Orders made as specified; no costs set off or stay ordered; equitable lien declared for second defendant.
Legal Topics
['offer of Compromise' 'calderbank Offers' 'indemnity Costs' 'equitable Lien of Solicitor']
['civil Procedure' 'costs'] ['offer of Compromise' 'calderbank Offers' 'indemnity Costs' 'equitable Lien of Solicitor']

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Procedural Posture

Costs Hearing Following Substantive Judgment in Personal Injuries Claim / Post Judgment Costs Application

Legal Issues

  1. 1 ['Whether the offer made on 15 June 2015 was a valid offer of compromise under UCPR 20.26 or a Calderbank offer' 'Whether it was unreasonable for the plaintiff to reject the offer' 'Whether a gross sum costs order should be made' 'Whether set off of costs and judgment should occur' 'Whether the second defendant has an equitable lien over the judgment moneys']

Ratio Decidendi

The offer of compromise served by KAH on 15 June 2015 complied with UCPR 20.26 and was a valid offer of compromise; it was unreasonable for the plaintiff to reject it in the circumstances. Therefore, by operation of UCPR 42.15, costs should be ordered in favour of the plaintiff on an ordinary basis up to and including 15 June 2015, and in favour of KAH assessed on an indemnity basis from 16 June 2015. It is appropriate to fix the first defendant's costs at a gross sum of $140,000. Shine Lawyers has an equitable lien over the judgment sum of $94,533.05 and its solicitor/client costs for acting for the plaintiff. No set off or stay of judgment is ordered.

Court Disposition

Orders made as specified; no costs set off or stay ordered; equitable lien declared for second defendant.

Orders

  • ["The costs order made on 23 June 2017 is vacated and in lieu thereof the first defendant is to pay the plaintiff's costs on an ordinary basis up to and including 15 June 2015 and from 16 June 2015 the plaintiff is to pay the first defendant's costs assessed on an indemnity basis." "The first defendant's costs are...