Ozkan Erten v Kellogg Superannuation Pty Limited [2013] NSWSC 1780

Ozkan Erten v Kellogg Superannuation Pty Limited [2013] NSWSC 1780

The defendants were entitled to their costs on the ordinary basis. The first offers, which required the plaintiff to capitulate, were not treated as effective because the Court was not satisfied at those earlier dates that the plaintiff should reasonably have regarded his position as hopeless. The second offers were effective under UCPR r 20.26 and as Calderbank offers because, by then, it should have been apparent to the plaintiff that there was an extremely high likelihood that his claim would fail and that he would be ordered to pay the defendants' costs. The plaintiff was therefore ordered to pay each defendant's costs on the ordinary basis up to the date of its second offer and on an...

Jurisdiction
Australia
Judgment Date
06 December 2013
Procedural Posture
Costs Application in Equity Division Proceedings Concerning Superannuation Total and Permanent Disablement Benefits / Notices of Motion for Costs After the Plaintiff's Claim Was Dismissed Under UCPR R 29.7 Because the Plaintiff Did Not Appear at the Hearing
Outcome
Plaintiff ordered to pay the defendants' costs in specified gross sums.
Legal Topics
['offers of Compromise' 'calderbank Offers' 'indemnity Costs' 'gross Sum Costs Orders' 'dismissal for Non Appearance' 'total and Permanent Disablement Benefits']
['civil Procedure' 'costs' 'superannuation' 'insurance'] ['offers of Compromise' 'calderbank Offers' 'indemnity Costs' 'gross Sum Costs Orders' 'dismissal for Non Appearance' 'total and Permanent Disablement Benefits']

Case Brief

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Procedural Posture

Costs Application in Equity Division Proceedings Concerning Superannuation Total and Permanent Disablement Benefits / Notices of Motion for Costs After the Plaintiff's Claim Was Dismissed Under UCPR R 29.7 Because the Plaintiff Did Not Appear at the Hearing

Legal Issues

  1. 1 ['Whether offers of compromise on terms that verdict or judgment be entered for a defendant and each party bear their own costs constituted effective offers under UCPR r 20.26 or effective Calderbank offers.' "Whether the plaintiff should pay the defendants' costs on an indemnity basis for any period, and from what date." "Whether the Court should fix the defendants' costs as gross sums under s 98(4)(c) of the Civil Procedure Act 2005." "What gross sums should be ordered for each defendant's costs, including existing costs orders."]

Ratio Decidendi

The defendants were entitled to their costs on the ordinary basis. The first offers, which required the plaintiff to capitulate, were not treated as effective because the Court was not satisfied at those earlier dates that the plaintiff should reasonably have regarded his position as hopeless. The second offers were effective under UCPR r 20.26 and as Calderbank offers because, by then, it should have been apparent to the plaintiff that there was an extremely high likelihood that his claim would fail and that he would be ordered to pay the defendants' costs. The plaintiff was therefore ordered to pay each defendant's costs on the ordinary basis up to the date of its second offer and on an...

Court Disposition

Plaintiff ordered to pay the defendants' costs in specified gross sums.

Orders

  • ["Order the plaintiff to pay the first defendant's costs of the proceedings (including for existing costs orders) in the gross sum of $51,429." "Order the plaintiff to pay the second defendant's costs of the proceedings (including for existing costs orders) in the gross sum of $108,315."]