Owners Strata Plan No.64622 v Australand Constructions Pty Limited [2009] NSWSC 948

Owners Strata Plan No.64622 v Australand Constructions Pty Limited [2009] NSWSC 948

Because the defendants made an offer of compromise under UCPR r 20.26, the plaintiff rejected it, and the plaintiff obtained judgment significantly less favourable than the offer, UCPR r 42.15 applied. The plaintiff did not demonstrate exceptional circumstances warranting departure from the usual operation of the rule, and a refusal that was said to be 'not plainly unreasonable' was insufficient to displace the defendants' entitlement to indemnity costs from 20 September 2008.

Jurisdiction
Australia
Judgment Date
22 October 2009
Procedural Posture
Equity Division, Construction and Technology List Proceedings Concerning Building Defect Rectification and Costs / Costs Judgment Following Principal Judgment
Outcome
Judgment for the plaintiff for $819,113; plaintiff's motion dated 21 August 2009 otherwise dismissed; defendants awarded costs to 19 September 2008, and defendants awarded indemnity costs from 20 September 2008.
Legal Topics
['offers of Compromise' 'indemnity Costs' 'ucpr R 42.15' 'departure From General Costs Rule' 'rejection of Offer of Compromise']
['civil Procedure' 'costs' 'construction Law' 'strata Schemes'] ['offers of Compromise' 'indemnity Costs' 'ucpr R 42.15' 'departure From General Costs Rule' 'rejection of Offer of Compromise']

Case Brief

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Procedural Posture

Equity Division, Construction and Technology List Proceedings Concerning Building Defect Rectification and Costs / Costs Judgment Following Principal Judgment

Legal Issues

  1. 1 ["Whether the defendants' costs from 20 September 2008 should be assessed on the ordinary basis or on the indemnity basis after the plaintiff rejected an offer of compromise under UCPR r 20.26." 'Whether the Court should exercise its discretion under UCPR r 42.15(2) to order otherwise than indemnity costs.' "Whether the plaintiff's non-acceptance of the offer being 'not plainly unreasonable' was sufficient to displace the presumption in UCPR r 42.15(2)."]

Ratio Decidendi

Because the defendants made an offer of compromise under UCPR r 20.26, the plaintiff rejected it, and the plaintiff obtained judgment significantly less favourable than the offer, UCPR r 42.15 applied. The plaintiff did not demonstrate exceptional circumstances warranting departure from the usual operation of the rule, and a refusal that was said to be 'not plainly unreasonable' was insufficient to displace the defendants' entitlement to indemnity costs from 20 September 2008.

Court Disposition

Judgment for the plaintiff for $819,113; plaintiff's motion dated 21 August 2009 otherwise dismissed; defendants awarded costs to 19 September 2008, and defendants awarded indemnity costs from 20 September 2008.

Orders

  • ['Pursuant to UCPR r 20.24 the reports of Mr Barry Tozer dated 12 November 2007, 17 December 2007 (with the exception of paragraphs 80 to 83), 5 April 2008 and 3 August 2009 are adopted.' 'Judgment for the plaintiff for $819,113.' "The plaintiff's motion dated 21 August 2009 is otherwise dismissed." "The defendants...