The Owners – Strata Plan 84741 v Nazero Constructions Pty Ltd [2017] NSWSC 1241

The Owners – Strata Plan 84741 v Nazero Constructions Pty Ltd [2017] NSWSC 1241

The 5% allowance was not damages in the nature of interest but part of the compensatory rectification costs the plaintiff would actually incur. Including that allowance, the plaintiff's judgment of $1,203,345.37 was no less favourable than its $1,200,000 offer. The fact that the judgment only slightly exceeded the offer did not justify otherwise ordering under UCPR r 42.14(2), so the plaintiff was entitled to indemnity costs from 17 September 2015.

Jurisdiction
Australia
Judgment Date
15 September 2017
Procedural Posture
Costs Application Concerning Indemnity Costs Following an Offer of Compromise / Post Judgment Determination of Whether the Plaintiff Should Have Indemnity Costs From 17 September 2015
Outcome
Plaintiff to have indemnity costs from 17 September 2015; verdict and judgment entered for the plaintiff against the second defendant.
Legal Topics
['indemnity Costs' 'offer of Compromise' 'result No Less Favourable Than Offer' 'damages in the Nature of Interest' 'ucpr R 42.14']
['costs' 'civil Procedure' 'equity Technology and Construction List'] ['indemnity Costs' 'offer of Compromise' 'result No Less Favourable Than Offer' 'damages in the Nature of Interest' 'ucpr R 42.14']

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Procedural Posture

Costs Application Concerning Indemnity Costs Following an Offer of Compromise / Post Judgment Determination of Whether the Plaintiff Should Have Indemnity Costs From 17 September 2015

Legal Issues

  1. 1 ['Whether the plaintiff obtained a result no less favourable than its offer of compromise for the purposes of UCPR r 42.14(1).' 'Whether the 5% escalation allowance in the agreed verdict should be characterised as damages in the nature of interest and disregarded under UCPR r 42.16.' 'Whether the Court should otherwise order under UCPR r 42.14(2).']

Ratio Decidendi

The 5% allowance was not damages in the nature of interest but part of the compensatory rectification costs the plaintiff would actually incur. Including that allowance, the plaintiff's judgment of $1,203,345.37 was no less favourable than its $1,200,000 offer. The fact that the judgment only slightly exceeded the offer did not justify otherwise ordering under UCPR r 42.14(2), so the plaintiff was entitled to indemnity costs from 17 September 2015.

Court Disposition

Plaintiff to have indemnity costs from 17 September 2015; verdict and judgment entered for the plaintiff against the second defendant.

Orders

  • ['Verdict and judgment for the plaintiff against the second defendant in the amount of $1,203,345.37.' "The second defendant is to pay the plaintiff's costs of the proceedings on an ordinary basis up to 16 September 2015 and on an indemnity basis from 17 September 2015." "The second defendant is to pay the plaintiff...