Herbert v Tamworth City Council (No.4) [2004] NSWSC 394

Herbert v Tamworth City Council (No.4) [2004] NSWSC 394

The plaintiff's 13 November 2003 offer was a valid offer of compromise in relation to the separately determined liability question and was not accepted; the plaintiff obtained a result no less favourable than the offer, so Pt 52A r 22(4) entitled her to indemnity costs from that date and party and party costs before it. Section 198F of the Legal Profession Act 1987 operated as an exception to the s198D costs cap for post-offer indemnity costs. Because damages assessment would be delayed for about ten years, costs of the separate question should be paid forthwith. The cross-defendant was not entitled to indemnity costs because the cross-claim was reasonably arguable and the 20 February...

Jurisdiction
Australia
Judgment Date
13 May 2004
Procedural Posture
Personal Injury Damages Proceedings With Cross Claim / Costs Judgment Following Determination of Separate Question of Liability
Outcome
Plaintiff awarded costs of the separate question on an indemnity basis from 13 November 2003 and on a party and party basis before that date, payable forthwith; cross-defendant awarded costs of the separate question on a party and party basis.
Legal Topics
['offer of Compromise' 'indemnity Costs' 'party and Party Costs' 'separate Question' 'costs Payable Forthwith' 'costs Cap for Personal Injury Damages' 'calderbank Offer']
['costs' 'civil Procedure' 'personal Injury'] ['offer of Compromise' 'indemnity Costs' 'party and Party Costs' 'separate Question' 'costs Payable Forthwith' 'costs Cap for Personal Injury Damages' 'calderbank Offer']

Case Brief

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Procedural Posture

Personal Injury Damages Proceedings With Cross Claim / Costs Judgment Following Determination of Separate Question of Liability

Legal Issues

  1. 1 ["Whether the plaintiff's offer to compromise liability was an offer of compromise within Pt 22 of the Supreme Court Rules 1970." 'Whether the plaintiff was entitled to indemnity costs from 13 November 2003 under Pt 52A r 22(4).' 'Whether costs of the separate question should be payable forthwith under Pt 52A r 9(1).' 'Whether s198F of the Legal Profession Act 1987 displaces the costs limitation in s198D where its conditions are satisfied.' 'Whether the cross-defendant was entitled to indemnity costs, either generally or from 20 February 2004.']

Ratio Decidendi

The plaintiff's 13 November 2003 offer was a valid offer of compromise in relation to the separately determined liability question and was not accepted; the plaintiff obtained a result no less favourable than the offer, so Pt 52A r 22(4) entitled her to indemnity costs from that date and party and party costs before it. Section 198F of the Legal Profession Act 1987 operated as an exception to the s198D costs cap for post-offer indemnity costs. Because damages assessment would be delayed for about ten years, costs of the separate question should be paid forthwith. The cross-defendant was not entitled to indemnity costs because the cross-claim was reasonably arguable and the 20 February...

Court Disposition

Plaintiff awarded costs of the separate question on an indemnity basis from 13 November 2003 and on a party and party basis before that date, payable forthwith; cross-defendant awarded costs of the separate question on a party and party basis.

Orders

  • ["The defendant is to pay the plaintiff's costs of the determination of the separate question on an indemnity basis from 13 November 2003 and on a party and party basis prior to that date;" 'Such costs are to paid forthwith following agreement or assessment as to amount;' "The defendant is to pay the...