Dowedeit v Nominal Defendant (No 2) [2015] NSWDC 406

Dowedeit v Nominal Defendant (No 2) [2015] NSWDC 406

Indemnity costs were refused due to the plaintiff's late amendment to pleadings (blameless accident provisions first raised after the offer expired) and failure on the negligence issue, constituting special circumstances to exercise judicial discretion against awarding indemnity costs. A conditional stay was granted to balance entitlement to judgment with the possibility and basis for appeal.

Parties
Plaintiff: Ronald Dowedeit; Defendant: Nominal Defendant
Jurisdiction
Australia
Judgment Date
26 August 2015
Procedural Posture
Civil / Post Judgment Applications
Outcome
Application for indemnity costs refused; conditional stay of judgment granted; costs of applications to be costs in the proceedings
Legal Topics
Costs, Stay of Proceedings, Offer of Compromise, Indemnity Costs
Civil Procedure Costs Stay of Proceedings Offer of Compromise Indemnity Costs

Case Brief

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Parties

Ronald Dowedeit

Plaintiff

Nominal Defendant

Defendant

Procedural Posture

Civil / Post Judgment Applications

Legal Issues

  1. 1 Whether the plaintiff is entitled to indemnity costs following an offer of compromise
  2. 2 Whether a stay of judgment should be granted pending appeal and upon what terms

Ratio Decidendi

Indemnity costs were refused due to the plaintiff's late amendment to pleadings (blameless accident provisions first raised after the offer expired) and failure on the negligence issue, constituting special circumstances to exercise judicial discretion against awarding indemnity costs. A conditional stay was granted to balance entitlement to judgment with the possibility and basis for appeal.

Court Disposition

Application for indemnity costs refused; conditional stay of judgment granted; costs of applications to be costs in the proceedings

Orders

  • Refuse the plaintiff's application and confirm order (2) made on 5 August 2015.
  • Grant a stay on condition that within 28 days the defendant pays the judgment sum including any post-judgment interest to the plaintiff's solicitor, who must hold all but $50,000 in interest bearing deposit until disposal of appeal filed by 5pm on 5 November 2015 (or until 5pm on 5 November 2015 if no appeal is...