MTH v State of New South Wales (No 2) [2024] NSWSC 1681

MTH v State of New South Wales (No 2) [2024] NSWSC 1681

The first defendant was entitled to indemnity costs from 31 July 2020 due to the plaintiff's failure to accept a valid Offer of Compromise made in accordance with the UCPR. The joint Calderbank offers from the second and third defendants did not justify indemnity costs as they were joint, not each separable, and the plaintiff's rejection was not unreasonable in the circumstances. Freezing orders as against the third defendant were discharged, and as against the second defendant varied to allow payment for reasonably incurred legal costs and disbursements, with sufficient funds remaining for any appeal.

Parties
Plaintiff: MTH; First Defendant: State of New South Wales; Second Defendant: Estate of the late Geoffrey Croft; Third Defendant: Sandra Croft
Jurisdiction
Australia
Judgment Date
18 December 2024
Procedural Posture
Civil / Post Judgment Applications Concerning Costs and Freezing Orders
Outcome
First defendant's costs order varied; second and third defendants' costs variation application dismissed; freezing orders varied/discharged per orders set out.
Legal Topics
Indemnity Costs, Offer of Compromise, Freezing Orders, Calderbank Offers
Civil Procedure Costs Indemnity Costs Offer of Compromise Freezing Orders Calderbank Offers

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Parties

MTH

Plaintiff

State of New South Wales

First Defendant

Estate of the late Geoffrey Croft

Second Defendant

Sandra Croft

Third Defendant

Procedural Posture

Civil / Post Judgment Applications Concerning Costs and Freezing Orders

Legal Issues

  1. 1 Whether the costs orders in favour of the defendants should be varied to indemnity costs following offers of compromise or Calderbank offers
  2. 2 Whether existing freezing orders should be varied or discharged following judgment for defendants and pending appeal

Ratio Decidendi

The first defendant was entitled to indemnity costs from 31 July 2020 due to the plaintiff's failure to accept a valid Offer of Compromise made in accordance with the UCPR. The joint Calderbank offers from the second and third defendants did not justify indemnity costs as they were joint, not each separable, and the plaintiff's rejection was not unreasonable in the circumstances. Freezing orders as against the third defendant were discharged, and as against the second defendant varied to allow payment for reasonably incurred legal costs and disbursements, with sufficient funds remaining for any appeal.

Court Disposition

First defendant's costs order varied; second and third defendants' costs variation application dismissed; freezing orders varied/discharged per orders set out.

Orders

  • The plaintiff pay the first defendant's costs on an ordinary basis until 30 July 2020 and on an indemnity basis thereafter.
  • The application of the second and third defendants for variation of costs orders is dismissed.