Moore v Gillis and Ors [2022] NSWSC 1161

Moore v Gillis and Ors [2022] NSWSC 1161

The Calderbank offer was a genuine attempt to settle, but its failure to mention the legal practice's claim to an undiminished entitlement to additional costs yet to be assessed meant it was not unreasonable for the plaintiff to reject it. The 24 July 2019 offer was an offer of compromise under r 20.26. Unlike Lawson, the plaintiff's 31 July 2019 counter-offer showed a clear understanding of the costs assessment issue and a preparedness to settle on terms dealing with that liability, so he was not disadvantaged in deciding whether to accept or reject the offer. There was no rational basis to order otherwise, and the presumptive effect of r 42.15A should apply.

Jurisdiction
Australia
Judgment Date
26 August 2022
Procedural Posture
Civil Procedure Costs Application / Consequential Orders on Notice of Motion for Special Costs Order After Judgment for the Defendants
Outcome
Motion allowed in part; costs order varied to provide ordinary costs until 5 pm on 24 July 2019 and indemnity costs thereafter.
Legal Topics
['indemnity Costs' 'offer to Compromise' 'calderbank Offer' 'uniform Civil Procedure Rules 2005 (nsw) R 42.15 A']
['civil Procedure' 'costs'] ['indemnity Costs' 'offer to Compromise' 'calderbank Offer' 'uniform Civil Procedure Rules 2005 (nsw) R 42.15 A']

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Procedural Posture

Civil Procedure Costs Application / Consequential Orders on Notice of Motion for Special Costs Order After Judgment for the Defendants

Legal Issues

  1. 1 ['Whether the defendants should receive indemnity costs after the plaintiff rejected or allowed to lapse formal settlement offers.' 'Whether the May 2019 Calderbank offer made it unreasonable for the plaintiff to reject the offer.' 'Whether the offer of compromise of 24 July 2019 attracted the presumptive costs consequences under r 42.15A of the Uniform Civil Procedure Rules 2005 (NSW).']

Ratio Decidendi

The Calderbank offer was a genuine attempt to settle, but its failure to mention the legal practice's claim to an undiminished entitlement to additional costs yet to be assessed meant it was not unreasonable for the plaintiff to reject it. The 24 July 2019 offer was an offer of compromise under r 20.26. Unlike Lawson, the plaintiff's 31 July 2019 counter-offer showed a clear understanding of the costs assessment issue and a preparedness to settle on terms dealing with that liability, so he was not disadvantaged in deciding whether to accept or reject the offer. There was no rational basis to order otherwise, and the presumptive effect of r 42.15A should apply.

Court Disposition

Motion allowed in part; costs order varied to provide ordinary costs until 5 pm on 24 July 2019 and indemnity costs thereafter.

Orders

  • ['I vary order 2 pronounced on 25 March 2022 and substitute an order in the following terms, "(2) the plaintiff to pay the defendant\'s costs up to and including 5 pm on 24 July 2019 on an ordinary basis and thereafter on an indemnity basis as agreed or assessed."' "The plaintiff to pay the defendant's costs of the...