Rebecca Nemeth v Westfield Limited & P T Limited [2012] NSWDC 77

Rebecca Nemeth v Westfield Limited & P T Limited [2012] NSWDC 77

The defendants' offer was not a valid offer of compromise under the rules because it was not exclusive of costs, and thus Old v McInnes applied. However, since the offer was capable of acceptance as a Calderbank offer, the court exercised its discretion under s 98 Civil Procedure Act to order each party to pay its own costs from 8 December 2011, with the defendants to pay the plaintiff's costs up to that date and for liability issues, those costs being excluded from the limitation in the Legal Profession Act 2004.

Jurisdiction
Australia
Judgment Date
25 May 2012
Procedural Posture
Civil / Costs Decision Post Judgment
Outcome
Defendants to pay plaintiff's costs up to 8 December 2011 on an ordinary basis; each party to bear its own costs from 8 December 2011 except that defendants pay plaintiff’s costs in respect of liability up to and including 11 May 2012; those costs excluded from statutory limitation.
Legal Topics
['costs' 'offers of Compromise' 'legal Profession Act' 'uniform Civil Procedure Rules']
['civil Procedure'] ['costs' 'offers of Compromise' 'legal Profession Act' 'uniform Civil Procedure Rules']

Case Brief

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Procedural Posture

Civil / Costs Decision Post Judgment

Legal Issues

  1. 1 ['Whether the offer of compromise served by defendants complied with Rule 20.26 UCPR' 'Whether an order for indemnity costs should be made from 8 December 2011' 'Whether costs related to liability should be excluded from the statutory cap under the Legal Profession Act 2004']

Ratio Decidendi

The defendants' offer was not a valid offer of compromise under the rules because it was not exclusive of costs, and thus Old v McInnes applied. However, since the offer was capable of acceptance as a Calderbank offer, the court exercised its discretion under s 98 Civil Procedure Act to order each party to pay its own costs from 8 December 2011, with the defendants to pay the plaintiff's costs up to that date and for liability issues, those costs being excluded from the limitation in the Legal Profession Act 2004.

Court Disposition

Defendants to pay plaintiff's costs up to 8 December 2011 on an ordinary basis; each party to bear its own costs from 8 December 2011 except that defendants pay plaintiff’s costs in respect of liability up to and including 11 May 2012; those costs excluded from statutory limitation.

Orders

  • ["The defendants to pay the plaintiff's costs of the proceedings on an ordinary basis up to the beginning of 8 December 2011." 'From the beginning of 8 December 2011, order each party to pay its own costs subject to Order 3 below.' "Order the defendants to pay the plaintiff's costs in respect of liability on an...