De Roma v Inner West Council & Ausgrid (No 2) [2022] NSWDC 562

De Roma v Inner West Council & Ausgrid (No 2) [2022] NSWDC 562

Because the first defendant made a valid offer of compromise on 30 March 2020 that the plaintiff failed to accept, and then obtained judgment no less favourable than that offer, and because the evidence did not support a real prospect of liability against the first defendant, the plaintiff must pay the first defendant's costs on the ordinary basis until 30 March 2020 and on the indemnity basis from 31 March 2020. It would be unjust and unreasonable to require the fourth defendant, which was joined only on 7 October 2021 and did not conduct the litigation in a manner warranting such an order, to indemnify the plaintiff for her costs liability to the first defendant.

Jurisdiction
Australia
Judgment Date
18 November 2022
Procedural Posture
Civil Costs Determination / Competing Costs Motions Following Delivery of Primary Judgment
Outcome
The first defendant's costs motion was successful; the plaintiff's motion for indemnity from the fourth defendant was unsuccessful.
Legal Topics
['offers of Compromise' 'calderbank Offers' 'indemnity Costs' 'bullock Orders' 'sanderson Orders' 'costs Discretion']
['civil Procedure' 'costs'] ['offers of Compromise' 'calderbank Offers' 'indemnity Costs' 'bullock Orders' 'sanderson Orders' 'costs Discretion']

Case Brief

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Procedural Posture

Civil Costs Determination / Competing Costs Motions Following Delivery of Primary Judgment

Legal Issues

  1. 1 ["Whether the plaintiff should pay the first defendant's costs on an indemnity basis after rejecting offers of compromise or Calderbank offers." "Whether the fourth defendant should indemnify the plaintiff for her liability to pay the first defendant's costs by a Bullock or Sanderson order." 'Whether the usual costs order should apply as between the plaintiff and the fourth defendant.']

Ratio Decidendi

Because the first defendant made a valid offer of compromise on 30 March 2020 that the plaintiff failed to accept, and then obtained judgment no less favourable than that offer, and because the evidence did not support a real prospect of liability against the first defendant, the plaintiff must pay the first defendant's costs on the ordinary basis until 30 March 2020 and on the indemnity basis from 31 March 2020. It would be unjust and unreasonable to require the fourth defendant, which was joined only on 7 October 2021 and did not conduct the litigation in a manner warranting such an order, to indemnify the plaintiff for her costs liability to the first defendant.

Court Disposition

The first defendant's costs motion was successful; the plaintiff's motion for indemnity from the fourth defendant was unsuccessful.

Orders

  • ["Order 2 made on 23 September 2022 is vacated to the effect that the plaintiff is to pay the first defendant's costs on the ordinary basis until 30 March 2020, and on the indemnity basis from the 31 March 2020." 'I decline to order that the fourth defendant indemnify the plaintiff for her costs liability to the...