Meshumar v Otmy (No 2) [2018] NSWSC 1451

Meshumar v Otmy (No 2) [2018] NSWSC 1451

The defendant's offer required the plaintiff to abandon his claim but would have provided a benefit equivalent to $55,428.28, and in light of the contentious issues in the plaintiff's claim it was a genuine offer of compromise. The plaintiff made no submission that the notice should be treated as ineffective under Rule 42.15A(2) or otherwise, and no obvious flaw appeared in the defendant's reliance on the UCPR offer or Calderbank basis. The Court therefore vacated the earlier costs order and ordered ordinary costs up to 6 October 2016 and indemnity costs from 7 October 2016.

Jurisdiction
Australia
Judgment Date
26 September 2018
Procedural Posture
Costs Application / On the Papers After Dismissal of the Plaintiff's Claim
Outcome
The defendant's application for a special costs order was granted.
Legal Topics
['party/party Costs' 'ordinary Basis Costs' 'indemnity Basis Costs' 'offer of Compromise' 'calderbank Offer']
['costs'] ['party/party Costs' 'ordinary Basis Costs' 'indemnity Basis Costs' 'offer of Compromise' 'calderbank Offer']

Case Brief

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Procedural Posture

Costs Application / On the Papers After Dismissal of the Plaintiff's Claim

Legal Issues

  1. 1 ["Whether the defendant should receive a special costs order after the dismissal of the plaintiff's claim." "Whether the defendant's Notice of Offer of Compromise dated 6 October 2016, also relied upon as a Calderbank offer, justified ordinary costs up to 6 October 2016 and indemnity costs from 7 October 2016."]

Ratio Decidendi

The defendant's offer required the plaintiff to abandon his claim but would have provided a benefit equivalent to $55,428.28, and in light of the contentious issues in the plaintiff's claim it was a genuine offer of compromise. The plaintiff made no submission that the notice should be treated as ineffective under Rule 42.15A(2) or otherwise, and no obvious flaw appeared in the defendant's reliance on the UCPR offer or Calderbank basis. The Court therefore vacated the earlier costs order and ordered ordinary costs up to 6 October 2016 and indemnity costs from 7 October 2016.

Court Disposition

The defendant's application for a special costs order was granted.

Orders

  • ['Vacate the costs order made by the Court on 16 February 2018.' "Order the plaintiff to pay the defendant's costs of the proceedings on an ordinary basis up to 6 October 2016 and on the indemnity basis from 7 October 2016."]