Stevanovic v McIndoe (Costs) [2011] NSWDC 43

Stevanovic v McIndoe (Costs) [2011] NSWDC 43

The offer of compromise was valid, but the plaintiff established special circumstances displacing the r 42.15 presumption. At the time of the offer, the full parameters of the dispute were uncertain because particulars of contributory negligence and expert reports were served late, so the plaintiff was not made aware of the case she had to meet until the last minute. In those circumstances, and given conduct inconsistent with s 56 of the Civil Procedure Act 2005, it was not unreasonable for the plaintiff not to accept the offer.

Jurisdiction
Australia
Judgment Date
31 January 2011
Procedural Posture
Civil Costs Application Following Negligence Proceedings / In Chambers on Written Submissions After Substantive Judgment
Outcome
Defendant's application for indemnity costs refused; costs order made on 19 November 2010 confirmed; defendant ordered to pay the plaintiff's costs of the application on the ordinary basis.
Legal Topics
['offer of Compromise' 'indemnity Costs' 'ordinary Costs' 'exceptional or Special Circumstances' 'contributory Negligence' 'late Service of Evidence']
['costs' 'civil Procedure' 'negligence'] ['offer of Compromise' 'indemnity Costs' 'ordinary Costs' 'exceptional or Special Circumstances' 'contributory Negligence' 'late Service of Evidence']

Case Brief

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Procedural Posture

Civil Costs Application Following Negligence Proceedings / In Chambers on Written Submissions After Substantive Judgment

Legal Issues

  1. 1 ["Whether the defendant's offer of compromise complied with r 20.26 and was a valid offer." 'Whether the plaintiff established special or exceptional circumstances displacing the presumption in favour of indemnity costs under r 42.15.' "Whether it was unreasonable for the plaintiff not to accept the defendant's offer of compromise."]

Ratio Decidendi

The offer of compromise was valid, but the plaintiff established special circumstances displacing the r 42.15 presumption. At the time of the offer, the full parameters of the dispute were uncertain because particulars of contributory negligence and expert reports were served late, so the plaintiff was not made aware of the case she had to meet until the last minute. In those circumstances, and given conduct inconsistent with s 56 of the Civil Procedure Act 2005, it was not unreasonable for the plaintiff not to accept the offer.

Court Disposition

Defendant's application for indemnity costs refused; costs order made on 19 November 2010 confirmed; defendant ordered to pay the plaintiff's costs of the application on the ordinary basis.

Orders

  • ['Application for indemnity costs refused.' "Defendant to pay the plaintiff's costs of this application, on the ordinary basis." 'The costs order made on 19 November 2010 is confirmed.']