Oneflare Pty Ltd v Chernih [No.2] [2017] NSWSC 302

Oneflare Pty Ltd v Chernih [No.2] [2017] NSWSC 302

Indemnity costs should not be awarded as the offer of compromise was not demonstrated to be a significant compromise, there was no evidence of the value of costs foregone, and the plaintiff could not adequately reassess its position solely on the basis of the defendant's offer since the litigious landscape had not materially changed and there was insufficient basis to depart from ordinary costs.

Parties
Plaintiff: Oneflare Pty Ltd; First Defendant: Nicholas Chernih; Second Defendant: Linkbuild SEO Pty Ltd
Jurisdiction
Australia
Judgment Date
31 March 2017
Procedural Posture
Application for Indemnity Costs / Post Judgment, Costs Determination
Outcome
Application for indemnity costs dismissed with costs.
Legal Topics
Costs, Offers of Compromise, Indemnity Costs, UCPR R 42.15 a, Calderbank Offer
Civil Procedure Costs Offers of Compromise Indemnity Costs UCPR R 42.15 a Calderbank Offer

Case Brief

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Parties

Oneflare Pty Ltd

Plaintiff

Nicholas Chernih

First Defendant

Linkbuild SEO Pty Ltd

Second Defendant

Procedural Posture

Application for Indemnity Costs / Post Judgment, Costs Determination

Legal Issues

  1. 1 Whether indemnity costs should be awarded to the defendants based on an offer of compromise under UCPR r 42.15A
  2. 2 Whether the offer was genuinely a compromise
  3. 3 Whether costs should follow the event or if special order should be made

Ratio Decidendi

Indemnity costs should not be awarded as the offer of compromise was not demonstrated to be a significant compromise, there was no evidence of the value of costs foregone, and the plaintiff could not adequately reassess its position solely on the basis of the defendant's offer since the litigious landscape had not materially changed and there was insufficient basis to depart from ordinary costs.

Court Disposition

Application for indemnity costs dismissed with costs.

Orders

  • Order the plaintiff to pay the defendants' costs up until and including 13 September 2016.
  • Order the defendants to pay the plaintiff's costs of the defendants' application for a special costs order.