Perry v Kinnear & Ors (No. 6) [2021] NSWDC 273

Perry v Kinnear & Ors (No. 6) [2021] NSWDC 273

The application for indemnity costs fails because the defendants’ offer was not made in accordance with the formal requirements of UCPR 20.26, meaning costs consequences under UCPR 42.15A do not apply; further, neither party tendered or relied on admissible evidence of the settlement offer to allow consideration of Calderbank principles. The appropriate order is that each party bear their own costs of this motion.

Parties
Plaintiff: Mrs Isabell Perry; First Defendant: Mr Ian Kinnear; Second Defendant: Mrs Leisha Kinnear
Jurisdiction
Australia
Judgment Date
27 May 2021
Procedural Posture
Civil / Costs Application After Principal Judgment
Outcome
Defendants' notice of motion for a special order for costs is dismissed. Each party is to pay their own costs of the motion.
Legal Topics
Party/party Costs, Indemnity Basis, Offer of Compromise, Without Prejudice Correspondence
Civil Procedure Costs Party/party Costs Indemnity Basis Offer of Compromise Without Prejudice Correspondence

Case Brief

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Parties

Mrs Isabell Perry

Plaintiff

Mr Ian Kinnear

First Defendant

Mrs Leisha Kinnear

Second Defendant

Procedural Posture

Civil / Costs Application After Principal Judgment

Legal Issues

  1. 1 Whether defendants are entitled to indemnity costs based on an informal settlement offer made without prejudice
  2. 2 Whether costs should reflect plaintiff's success on interlocutory applications
  3. 3 Admissibility and effect of without prejudice communications under Evidence Act 1995 (NSW) s 131(2)(h)

Ratio Decidendi

The application for indemnity costs fails because the defendants’ offer was not made in accordance with the formal requirements of UCPR 20.26, meaning costs consequences under UCPR 42.15A do not apply; further, neither party tendered or relied on admissible evidence of the settlement offer to allow consideration of Calderbank principles. The appropriate order is that each party bear their own costs of this motion.

Court Disposition

Defendants' notice of motion for a special order for costs is dismissed. Each party is to pay their own costs of the motion.

Orders

  • I note the defendant's undertaking to file a notice of motion and pay the appropriate fee in regard to this application.
  • The notice of motion embodying the defendant's application for a special order for costs is dismissed.