Owners Corporation Strata Plan 61288 v Brookfield Multiplex Limited [2012] NSWSC 1586

Owners Corporation Strata Plan 61288 v Brookfield Multiplex Limited [2012] NSWSC 1586

Because each offer of compromise was more favourable to the plaintiff than the judgment obtained, the defendants had a prima facie entitlement to indemnity costs. The plaintiff did not displace that entitlement: the novelty of the duty of care claim did not assist because the authorities were against the plaintiff; the $100,000 offer was not derisory when assessed against the lack of merit in the claim and the implied ordinary costs consequences; and any asserted conflict at the time of the first offer was not relevant to the separate offer of compromise made to this plaintiff and was more apparent than real. The defendants were therefore entitled to ordinary costs until 24 March 2011 and...

Jurisdiction
Australia
Judgment Date
12 December 2012
Procedural Posture
Costs Application in Proceedings Concerning Alleged Defective Construction Work / Notice of Motion for Indemnity Costs After Judgment for the Defendants on a Separate Question
Outcome
Plaintiff ordered to pay the defendants' costs on the ordinary basis until 24 March 2011 and on the indemnity basis thereafter; defendants also awarded costs of the Notice of Motion and interest on costs.
Legal Topics
['offer of Compromise' 'indemnity Costs' 'calderbank Offer' 'duty of Care' 'home Building Act Statutory Warranties' 'interest on Costs']
['practice and Procedure' 'costs' 'construction Law' 'negligence'] ['offer of Compromise' 'indemnity Costs' 'calderbank Offer' 'duty of Care' 'home Building Act Statutory Warranties' 'interest on Costs']

Case Brief

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Procedural Posture

Costs Application in Proceedings Concerning Alleged Defective Construction Work / Notice of Motion for Indemnity Costs After Judgment for the Defendants on a Separate Question

Legal Issues

  1. 1 ['Whether the defendants were entitled to indemnity costs from the date of service of their offers of compromise because the offers were more favourable to the plaintiff than the final judgment.' 'Whether the plaintiff displaced the prima facie costs consequences of non-acceptance by relying on the novelty of the claim, the alleged derisory nature of the offer, or an asserted conflict affecting consideration of the first offer.' 'Whether the defendants should have interest on costs.']

Ratio Decidendi

Because each offer of compromise was more favourable to the plaintiff than the judgment obtained, the defendants had a prima facie entitlement to indemnity costs. The plaintiff did not displace that entitlement: the novelty of the duty of care claim did not assist because the authorities were against the plaintiff; the $100,000 offer was not derisory when assessed against the lack of merit in the claim and the implied ordinary costs consequences; and any asserted conflict at the time of the first offer was not relevant to the separate offer of compromise made to this plaintiff and was more apparent than real. The defendants were therefore entitled to ordinary costs until 24 March 2011 and...

Court Disposition

Plaintiff ordered to pay the defendants' costs on the ordinary basis until 24 March 2011 and on the indemnity basis thereafter; defendants also awarded costs of the Notice of Motion and interest on costs.

Orders

  • ["The plaintiff pay the first and second defendants' costs on the ordinary basis up until 24 March 2011 and on the indemnity basis thereafter." "The plaintiff pay the defendants' costs of the Notice of Motion." 'The defendants have interest on costs in accordance with the Lahoud formula.' 'The defendants are...