Whalebone v Andrews (No 2) [2016] NSWDC 453

Whalebone v Andrews (No 2) [2016] NSWDC 453

The offer of compromise did not attract r 42.15 because it was open for only six days in circumstances where that was not a reasonable period, it required judgment for the defendant although judgment was given for the plaintiff, it did not account for pre-offer interest, and it required a real concession by the plaintiff concerning the defendant's asserted rights. The plaintiff was successful on the conversion claim and should receive some costs after 7 August 2015, but because the defendant succeeded on the primary contractual claim and the conversion claim was uncertain before 7 August 2015, the plaintiff should not receive costs for the earlier period and the defendant should have a...

Jurisdiction
Australia
Judgment Date
05 August 2016
Procedural Posture
Civil Costs Decision / Costs Determination After Judgment for the Plaintiff Was Given and Costs Were Reserved
Outcome
All previous costs orders were vacated and the defendant was ordered to pay the plaintiff $10,000 in respect of the costs of the proceedings.
Legal Topics
['costs Follow the Event' 'offer of Compromise' 'indemnity Costs' 'non Complying Offer' 'discretion as to Costs']
['civil Procedure' 'costs'] ['costs Follow the Event' 'offer of Compromise' 'indemnity Costs' 'non Complying Offer' 'discretion as to Costs']

Case Brief

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Procedural Posture

Civil Costs Decision / Costs Determination After Judgment for the Plaintiff Was Given and Costs Were Reserved

Legal Issues

  1. 1 ['Whether costs should follow the event after judgment was given for the plaintiff on the conversion claim.' "Whether the defendant's offer of compromise dated 3 September 2015 complied with r 20.26 of the Uniform Civil Procedure Rules 2005 and enlivened the cost consequences in r 42.15." "Whether the judgment obtained by the plaintiff was more favourable than the defendant's offer of compromise." 'How costs should be allocated for the period before and after 7 August 2015.']

Ratio Decidendi

The offer of compromise did not attract r 42.15 because it was open for only six days in circumstances where that was not a reasonable period, it required judgment for the defendant although judgment was given for the plaintiff, it did not account for pre-offer interest, and it required a real concession by the plaintiff concerning the defendant's asserted rights. The plaintiff was successful on the conversion claim and should receive some costs after 7 August 2015, but because the defendant succeeded on the primary contractual claim and the conversion claim was uncertain before 7 August 2015, the plaintiff should not receive costs for the earlier period and the defendant should have a...

Court Disposition

All previous costs orders were vacated and the defendant was ordered to pay the plaintiff $10,000 in respect of the costs of the proceedings.

Orders

  • ['Order that all previous cost orders be vacated.' 'Order that the defendant pay the plaintiff the sum of $10,000 in respect of the costs of the proceedings.']