Event and Time
Event Description
The case involves an application to vary the costs order made following the dismissal of proceedings in Houghton v Potts & Anor [2022] NSWSC 1778. The defendants sought indemnity costs from the plaintiff, arguing that their offer of compromise dated 25 July 2018 constituted a genuine compromise under the Uniform Civil Procedure Rules (UCPR).
Application and Claims
- Plaintiff's Position: The plaintiff contended that none of the defendants' offers amounted to a genuine compromise and thus should not be granted indemnity costs. They did not provide any evidence to support their claims.
- Defendants' Position: The defendants claimed that their offer dated 25 July 2018 was a genuine compromise, warranting an order for indemnity costs from the day after the offer. They submitted evidence including Calderbank letters and statements detailing the modest prospects of success for the plaintiff's claim.
Judicial Decisions
- The court varied the previous costs order and ordered the plaintiff to pay the defendants' costs on the ordinary basis up to 26 July 2018 and on an indemnity basis thereafter. The court found the offer dated 25 July 2018 to be a genuine compromise.
Dispute Points and Legal Basis
Dispute Points
- Genuineness of the Offer: The crux of the dispute was whether the 25 July 2018 offer constituted a "genuine compromise." The defendants argued that substantial evidence (expert opinions and significant legal costs incurred) demonstrated the offer's genuineness, while the plaintiff contended the opposite.
- Reasonableness of Rejection: The court considered whether the plaintiff's rejection of the offer was unreasonable, weighing the prospects of the plaintiff’s case against the evidence presented by the defendants.
- : The defendants also presented another offer from 2 March 2017, proposing to bear their own costs in exchange for a judgment in their favor. The court evaluated whether this constituted a compromise, ultimately finding it did not.