Mersal v Georges River Council (No 2) [2021] NSWDC 480

Mersal v Georges River Council (No 2) [2021] NSWDC 480

Indemnity costs were not appropriate from the dates of early 'walk away' offers as they did not represent genuine compromises at the relevant stage, but the plaintiff acted unreasonably in rejecting the Calderbank offer of 21 July 2021, justifying indemnity costs thereafter. For the cross-claim, MLC to pay Council and AHIGS' costs up to the specified dates, after which plaintiff is liable for costs on the indemnity basis, reflecting the outcome of the substantive and cross-claim and the timing and substance of offers made and rejected.

Jurisdiction
Australia
Judgment Date
10 September 2021
Procedural Posture
Civil / Determination of Costs Orders Following Judgment
Outcome
Orders for costs made as follows: plaintiff to pay Council and MLC's costs of proceedings (ordinary basis up to 21 July 2021, indemnity from 22 July 2021); MLC to pay Council's cross-claim costs on ordinary basis up to 21 July 2021; MLC to pay AHIGS cross-claim costs on ordinary basis up to 27 Nov 2020, indemnity 28...
Legal Topics
['costs' 'offers of Compromise' 'calderbank Offers' 'cross Claim Costs' 'uniform Civil Procedure Rules 2005 (nsw)' 'civil Procedure Act 2005 (nsw)']
['civil Procedure'] ['costs' 'offers of Compromise' 'calderbank Offers' 'cross Claim Costs' 'uniform Civil Procedure Rules 2005 (nsw)' 'civil Procedure Act 2005 (nsw)']

Case Brief

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Procedural Posture

Civil / Determination of Costs Orders Following Judgment

Legal Issues

  1. 1 ['Whether indemnity costs are warranted based on Offers of Compromise or Calderbank offers' "Whether 'costs follow the event' should apply in the main proceedings and cross-claim" 'Allocation of costs among parties following dismissal of claim and cross-claim']

Ratio Decidendi

Indemnity costs were not appropriate from the dates of early 'walk away' offers as they did not represent genuine compromises at the relevant stage, but the plaintiff acted unreasonably in rejecting the Calderbank offer of 21 July 2021, justifying indemnity costs thereafter. For the cross-claim, MLC to pay Council and AHIGS' costs up to the specified dates, after which plaintiff is liable for costs on the indemnity basis, reflecting the outcome of the substantive and cross-claim and the timing and substance of offers made and rejected.

Court Disposition

Orders for costs made as follows: plaintiff to pay Council and MLC's costs of proceedings (ordinary basis up to 21 July 2021, indemnity from 22 July 2021); MLC to pay Council's cross-claim costs on ordinary basis up to 21 July 2021; MLC to pay AHIGS cross-claim costs on ordinary basis up to 27 Nov 2020, indemnity 28...

Orders

  • ['The plaintiff is to pay the costs of the Council and MLC of the proceedings on the ordinary basis as agreed or assessed up to 21 July 2021 and on the indemnity basis from 22 July 2021.' 'MLC is to pay the costs of the Council of the cross‑claim, on the ordinary basis as agreed or assessed up to 21 July 2021.' "MLC...