Elmasri v Transport for NSW (No 2) [2021] NSWSC 1208

Elmasri v Transport for NSW (No 2) [2021] NSWSC 1208

Transport succeeded in the substantive proceedings and was entitled to ordinary costs, but not indemnity costs. The three offers did not engage the offer-of-compromise costs consequences because Transport failed to show that the short times allowed for acceptance were reasonable in the circumstances of an expedited hearing that Transport had instigated while evidence and documents were still being provided. Although the offers were genuine, Transport did not establish that the plaintiffs' refusals were unreasonable for Calderbank purposes. The proceedings were not public interest litigation warranting no costs order. Certain categories of costs were excluded because they concerned...

Jurisdiction
Australia
Judgment Date
24 September 2021
Procedural Posture
Costs in Proceedings Challenging the Validity of a Proposed Acquisition Notice / Post Dismissal Determination of Costs Orders
Outcome
The plaintiffs were ordered to pay the defendant's costs of the proceedings on the ordinary basis, excluding specified motions and applications; each party was ordered to bear its own costs of those excluded matters.
Legal Topics
['offers of Compromise' 'calderbank Offers' 'indemnity Costs' 'ordinary Costs' 'expedited Hearing' 'notice to Produce' 'suppression and Non Publication Orders' 'public Interest Litigation']
['costs' 'civil Procedure' 'land Acquisition'] ['offers of Compromise' 'calderbank Offers' 'indemnity Costs' 'ordinary Costs' 'expedited Hearing' 'notice to Produce' 'suppression and Non Publication Orders' 'public Interest Litigation']

Case Brief

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Procedural Posture

Costs in Proceedings Challenging the Validity of a Proposed Acquisition Notice / Post Dismissal Determination of Costs Orders

Legal Issues

  1. 1 ["Whether Transport's offers of compromise complied with UCPR 20.26, including whether the time allowed for acceptance was reasonable in the circumstances." "Whether the plaintiffs' refusal of Transport's Calderbank offers was unreasonable so as to warrant indemnity costs." 'Whether the proceedings should be treated as public interest litigation or otherwise justify no order as to costs.' 'Whether particular categories of costs should be excluded from the costs order in favour of Transport.']

Ratio Decidendi

Transport succeeded in the substantive proceedings and was entitled to ordinary costs, but not indemnity costs. The three offers did not engage the offer-of-compromise costs consequences because Transport failed to show that the short times allowed for acceptance were reasonable in the circumstances of an expedited hearing that Transport had instigated while evidence and documents were still being provided. Although the offers were genuine, Transport did not establish that the plaintiffs' refusals were unreasonable for Calderbank purposes. The proceedings were not public interest litigation warranting no costs order. Certain categories of costs were excluded because they concerned...

Court Disposition

The plaintiffs were ordered to pay the defendant's costs of the proceedings on the ordinary basis, excluding specified motions and applications; each party was ordered to bear its own costs of those excluded matters.

Orders

  • ["The plaintiffs pay the defendant's costs of the proceedings other than the defendant's notice of motion filed 13 July 2021 seeking orders that compliance with the plaintiff's notice to produce issued 11 July 2021 be dispensed with; the notice of motion filed by the defendant on or about 23 June 2021 seeking the...