Ryding v Miles & Ors (No 2) [2012] NSWSC 312

Ryding v Miles & Ors (No 2) [2012] NSWSC 312

An order for indemnity costs generally is not justified because it was not established the Plaintiff knowingly pursued untenable proceedings, but indemnity costs from 10 July 2009 are warranted because the Defendants made a valid offer of compromise not accepted and no exceptional circumstances displaced the prima facie entitlement; additionally, interest on costs is ordered as Defendants provided sufficient evidence of payments, satisfying statutory requirements.

Parties
Plaintiff: Richard Ryding; First Defendant: Elaine Miles; Second Defendant: John Wallace Stewart; Third Defendant: Alan Bruce Miles; Fourth Defendant: Gregory John Stewart
Jurisdiction
Australia
Judgment Date
03 April 2012
Procedural Posture
Costs Application After Judgment / Post Judgment (final Orders on Costs)
Outcome
Plaintiff to pay Defendants' costs, partly on party/party and partly on indemnity basis; interest on costs awarded.
Legal Topics
Costs, Indemnity Costs, Offer of Compromise, Calderbank Offer, Interest on Costs
Civil Procedure Costs Indemnity Costs Offer of Compromise Calderbank Offer Interest on Costs

Case Brief

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Parties

Richard Ryding

Plaintiff

Elaine Miles

First Defendant

John Wallace Stewart

Second Defendant

Alan Bruce Miles

Third Defendant

Gregory John Stewart

Fourth Defendant

Procedural Posture

Costs Application After Judgment / Post Judgment (final Orders on Costs)

Legal Issues

  1. 1 Whether indemnity costs should be awarded against the Plaintiff
  2. 2 Whether an offer of compromise justified indemnity costs from 10 July 2009
  3. 3 Whether interest on costs should be awarded to the Defendants

Ratio Decidendi

An order for indemnity costs generally is not justified because it was not established the Plaintiff knowingly pursued untenable proceedings, but indemnity costs from 10 July 2009 are warranted because the Defendants made a valid offer of compromise not accepted and no exceptional circumstances displaced the prima facie entitlement; additionally, interest on costs is ordered as Defendants provided sufficient evidence of payments, satisfying statutory requirements.

Court Disposition

Plaintiff to pay Defendants' costs, partly on party/party and partly on indemnity basis; interest on costs awarded.

Orders

  • Plaintiff to pay Defendants' costs of the proceedings on a party/party basis up to and including 9 July 2009, and on an indemnity basis from 10 July 2009, as agreed or assessed.
  • Plaintiff to pay the Defendants interest at the prescribed rate as defined in s 101(5) of the Civil Procedure Act 2005 (NSW) on costs and disbursements paid by them to their legal advisers, calculated according to the formula defined in the orders.