Della Franca v Lorenzato; Burwood Council v Lorenzato (No 2) [2022] NSWCA 53

Della Franca v Lorenzato; Burwood Council v Lorenzato (No 2) [2022] NSWCA 53

Where a party rejects an Offer of Compromise or Calderbank offer and does not obtain a more favourable outcome, the rules may require adverse costs consequences unless reasonable grounds for rejection exist, and whether such grounds exist requires close analysis of the offers and circumstances. In this case, while the formal offer by Burwood Council could have triggered indemnity costs, reasonable grounds for Ms Lorenzato’s rejection existed due to costs uncertainty in mixed claims. No sufficient basis was found to depart from the ordinary costs orders.

Jurisdiction
Australia
Judgment Date
07 April 2022
Procedural Posture
Civil / Court of Appeal—motion to Vary Costs Orders After Appeal Determination
Outcome
Burwood Council's application: set aside previous costs order, new costs regime imposed as per UCPR r 42.15. Della Franca's application: dismissed with costs.
Legal Topics
['costs Orders' 'offer of Compromise' 'calderbank Offers' 'uniform Civil Procedure Rules']
['civil Procedure'] ['costs Orders' 'offer of Compromise' 'calderbank Offers' 'uniform Civil Procedure Rules']

Case Brief

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Procedural Posture

Civil / Court of Appeal—motion to Vary Costs Orders After Appeal Determination

Legal Issues

  1. 1 ['Whether costs consequences under UCPR r 42.15 should apply following non-acceptance of an Offer of Compromise' 'Whether non-acceptance of Calderbank offers justified indemnity costs orders' "Whether 'order otherwise' should be made for purposes of UCPR r 42.15(2)"]

Ratio Decidendi

Where a party rejects an Offer of Compromise or Calderbank offer and does not obtain a more favourable outcome, the rules may require adverse costs consequences unless reasonable grounds for rejection exist, and whether such grounds exist requires close analysis of the offers and circumstances. In this case, while the formal offer by Burwood Council could have triggered indemnity costs, reasonable grounds for Ms Lorenzato’s rejection existed due to costs uncertainty in mixed claims. No sufficient basis was found to depart from the ordinary costs orders.

Court Disposition

Burwood Council's application: set aside previous costs order, new costs regime imposed as per UCPR r 42.15. Della Franca's application: dismissed with costs.

Orders

  • ["Set aside order (4) made on 16 December 2021; in lieu: Order Ms Lorenzato to pay Burwood Council's costs of appeal including on Council's notice of motion filed 22 December 2021." "Pursuant to UCPR r 42.15, order that Burwood Council pay Ms Lorenzato's costs on the ordinary basis of the proceedings at first...