85 Princess Pty Ltd v Fleming - [2025] NSWSC 713

Supreme Court

New South Wales

Medium Neutral Citation: 85 Princess Pty Ltd v Fleming [2025] NSWSC 713
Hearing dates: On the papers
Date of orders: 4 July 2025
Decision date: 04 July 2025
Jurisdiction: Equity
Before: Brereton J
Decision:
The plaintiff is to pay the defendant’s costs on the ordinary basis up to 6 June 2024 and on an indemnity basis from 7 June 2024.

Catchwords:
COSTS – party/party – where defendant made an offer of compromise pursuant to UCPR r 20.26 – where plaintiff rejected this offer – where plaintiff obtained judgment for nominal damages – where UCPR r 42.15 is enlivened – whether the Court should order otherwise under r 42.15 – where there is no reason the Court can only otherwise order if it is in favour of the offeree – where plaintiff was substantively the unsuccessful party – where the policy underpinning the regime is to encourage the proper compromise of litigation – plaintiff is to pay defendant’s costs up to the date of the offer of compromise on the ordinary basis and on the indemnity basis thereafter

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Morgan v Johnson (1998) 44 NSWLR 578
Motium Pty Ltd v Arrow Electronics Australia Pty Ltd [2011] WASCA 65 (S)
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11

Texts Cited:
N.A.

Category: Costs
Parties: 85 Princess Pty Ltd (plaintiff)
Ian Alexander Fleming (defendant)
Representation:
Counsel:
J Mack (plaintiff)
Dr A J Greinke (defendant)
Solicitors:
Litigation Specialists (plaintiff)
MV Law (defendant)

File Number(s): 2022/243968
Publication restriction: N.A.

JUDGMENT

I delivered judgment in these proceedings on 30 April 2025: see 85 Princess Pty Ltd v Fleming [2025] NSWSC 407. The substantive result was that the plaintiff (85 Princess) established that the defendant (Mr Fleming) was in breach of contract but that it was only entitled to nominal damages, which were assessed at $100.
These reasons concern the question of costs.
On 6 June 2024, the defendant served a notice of offer of compromise on the plaintiff, made pursuant to r 20.26 of the Uniform Civil Procedure Rules 2005 (NSW). This offer was for judgment against the defendant in the amount of $125,000, inclusive of interest but exclusive of costs. There is no dispute that the offer was a valid offer made pursuant to r 20.26. The plaintiff did not accept the offer.
UCPR r 42.15 provides:

(1)    This rule applies if the offer is made by the defendant, but not accepted by the plaintiff, and the plaintiff obtains an order or judgment on the claim no more favourable to the plaintiff than the terms of the offer.
(2)    Unless the court orders otherwise—
(a)     the plaintiff is entitled to an order against the defendant for the plaintiff’s costs in respect of the claim, to be assessed on the ordinary basis, up to the time from which the defendant becomes entitled to costs under paragraph (b), and
(b)     the defendant is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 85 Princess Pty Ltd v Fleming

Details

AGLC: 85 Princess Pty Ltd v Fleming [2025] NSWSC 713
Case: [2025] NSWSC 713
Decision Date: 04 July 2025

CaseChat Overview and Summary

The case of 85 Princess Pty Ltd v Fleming involved a dispute where the plaintiff, 85 Princess Pty Ltd, sued the defendant, Fleming, for damages. The dispute was ultimately resolved in the Supreme Court of New South Wales. The primary issue before the court was whether the plaintiff, who had rejected a compromise offer made by the defendant, should be ordered to pay the defendant's costs under the Uniform Civil Procedure Rules (UCPR). The court had to determine whether the policy of encouraging the proper compromise of litigation warranted such an order, given that the plaintiff had obtained a nominal damages judgment but was substantively unsuccessful.

The court considered the relevant provisions of the UCPR, particularly rules 20.26 and 42.15. Rule 20.26 allows a party to make an offer of compromise, while rule 42.15 provides that unless the court orders otherwise, a party who rejects such an offer must pay the other party's costs. The court found that there was no reason the plaintiff should not pay the defendant's costs up to the date of the offer on the ordinary basis and on the indemnity basis thereafter, as the policy of the regime was to encourage the proper compromise of litigation. The plaintiff had rejected the defendant's offer without justification, and thus, the court concluded that the plaintiff should bear the costs as per the rules.

Given the findings, the court ordered that the plaintiff pay the defendant's costs up to the date of the offer on the ordinary basis and on the indemnity basis thereafter. This decision underscores the importance of considering offers of compromise in litigation and the consequences of rejecting such offers without sufficient grounds. The court's ruling aligned with the principles of the UCPR, aiming to promote efficient dispute resolution and the proper use of court resources.

Orders