Byers v Frith (No 3) [2017] NSWDC 451

Byers v Frith (No 3) [2017] NSWDC 451

Because the second and third defendants made genuine, reasonable offers to compromise which were more favourable than the judgment to the plaintiff and open for a reasonable time, and the plaintiff unreasonably rejected those offers, the second and third defendants are entitled to indemnity costs from the day after their respective offers.

Parties
Plaintiff: Malcolm Byers; First Defendant: Jan Frith; Second Defendant: Kelvin Hutchinson; Third Defendant: Vision In Action Pty Ltd
Jurisdiction
Australia
Judgment Date
08 September 2017
Procedural Posture
Civil / Costs Application After Judgment
Outcome
Application granted; indemnity costs awarded to second and third defendants from the relevant dates of their offers.
Legal Topics
Costs, Party/party Costs, Indemnity Costs, Offers of Compromise, Calderbank Offers
Civil Procedure Costs Party/party Costs Indemnity Costs Offers of Compromise Calderbank Offers

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Parties

Malcolm Byers

Plaintiff

Jan Frith

First Defendant

Kelvin Hutchinson

Second Defendant

Vision In Action Pty Ltd

Third Defendant

Procedural Posture

Civil / Costs Application After Judgment

Legal Issues

  1. 1 Whether the second and third defendants are entitled to have their costs assessed on an indemnity basis following rejection of offers of compromise and Calderbank offers.

Ratio Decidendi

Because the second and third defendants made genuine, reasonable offers to compromise which were more favourable than the judgment to the plaintiff and open for a reasonable time, and the plaintiff unreasonably rejected those offers, the second and third defendants are entitled to indemnity costs from the day after their respective offers.

Court Disposition

Application granted; indemnity costs awarded to second and third defendants from the relevant dates of their offers.

Orders

  • Note the application by the second and third defendants for further orders after entry of judgment but within the 14 days allowed under r 36.16(3A) of the Uniform Civil Procedure Rules 2005.
  • Make orders in accordance with paras 2 and 6 of the notice of motion dated 13 July 2017.