Almario v. Varipatis (No. 3) [2013] NSWSC 93

Almario v. Varipatis (No. 3) [2013] NSWSC 93

The reference to costs in the first offer did not take it outside the rules, but the exceptional expedition, complexity and developing medical issues justified not applying indemnity costs from the first offer because the defendant could reasonably have been in the fog of forensic war during the period for acceptance of that offer. By the time of the second offer on 19 October 2012, that circumstance no longer justified refusal; there was no evidence showing that the defendant was justified in allowing the second and third offers to lapse, and the mere reasonableness of deciding to go to trial was insufficient to displace UCPR 42.14. The plaintiff was also to bear his own costs of and...

Jurisdiction
Australia
Judgment Date
20 February 2013
Procedural Posture
Costs Application / Application on the Papers in Chambers to Vary Costs Order After Judgment
Outcome
Order 3 pronounced on 21 December 2012 revoked and replaced with a varied costs order.
Legal Topics
['offers of Compromise' 'indemnity Costs' 'ordinary Basis Costs' 'variation of Costs Order' 'ucpr 42.14']
['civil Procedure' 'costs'] ['offers of Compromise' 'indemnity Costs' 'ordinary Basis Costs' 'variation of Costs Order' 'ucpr 42.14']

Case Brief

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Procedural Posture

Costs Application / Application on the Papers in Chambers to Vary Costs Order After Judgment

Legal Issues

  1. 1 ["Whether the plaintiff's offers of compromise in purported compliance with UCPR 20.26 engaged UCPR 42.14 so as to entitle the plaintiff to indemnity costs." 'Whether circumstances justified an order otherwise than in accordance with the usual rule in UCPR 42.14.' 'Whether the plaintiff should bear his own costs of and incidental to the claim in deceit that was abandoned during the hearing.' 'Whether the reference to costs in the first offer of compromise took that offer outside the rules.']

Ratio Decidendi

The reference to costs in the first offer did not take it outside the rules, but the exceptional expedition, complexity and developing medical issues justified not applying indemnity costs from the first offer because the defendant could reasonably have been in the fog of forensic war during the period for acceptance of that offer. By the time of the second offer on 19 October 2012, that circumstance no longer justified refusal; there was no evidence showing that the defendant was justified in allowing the second and third offers to lapse, and the mere reasonableness of deciding to go to trial was insufficient to displace UCPR 42.14. The plaintiff was also to bear his own costs of and...

Court Disposition

Order 3 pronounced on 21 December 2012 revoked and replaced with a varied costs order.

Orders

  • ["The defendant to pay the plaintiff's costs of the proceedings except the costs of and incidental to the plaintiff's claim in deceit." 'Costs are to be assessed on the ordinary basis up until the end of 19th October 2012; and on an indemnity basis thereafter.' 'Costs awarded include the costs of the application to...