Baker v Bunnings Group Limited (No 2)

District Court

New South Wales

Medium Neutral Citation:

Baker v Bunnings Group Limited (No 2) [2020] NSWDC 449

Hearing dates:

31 July 2020

Date of orders:

14 August 2020

Decision date:

14 August 2020

Jurisdiction:

Civil

Before:

Dicker SC DCJ

Decision:

(1) The Amended Notice of Motion filed in court on 31 July 2020 is dismissed.

(2) The defendant is to pay the plaintiff's costs of the Amended Notice of Motion filed on 31 July 2020 as agreed or assessed.

(3) The costs order made in favour of the defendant on 18 June 2020 is confirmed.

Catchwords:

Costs – application for indemnity costs – offers of compromise – whether the court should award indemnity costs or “otherwise” order – Calderbank offers

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

AB v Keanes (No 2) [2019] NSWDC 765

Baker v Bunnings Group Ltd [2020] NSWDC 310

Calderbank v Calderbank [1975] 3 All ER 333

Outerbridge trading as Century 21 Plateau Lifestyle Real Estate v Hall (No 2) [2020] NSWDC 8

Category:

Costs

Parties:

Shirley‑Ann Baker (Plaintiff)
Bunnings Group Limited (Defendant)

Representation:

Counsel:
S J Roulstone (Plaintiff)
G Jensen (Defendant)

Solicitors:
LHD Lawyers (Plaintiff)
McCabe Curwood (Defendant)

File Number(s):

2018/00307583

Judgment

1. These reasons for decision deal with an application by the defendant, Bunnings Group Ltd, for an order for indemnity costs against the plaintiff. The application follows the handing down of the court’s judgment after the completion of the final hearing in the proceedings: Baker v Bunnings Group Ltd [2020] NSWDC 310. The plaintiff was held to be unsuccessful in her claim in negligence against the defendant. These reasons assume a familiarity with the judgment handed down on 18 June 2020 (“the Judgment”).

2. In its Amended Notice of Motion filed in court with leave on 31 July 2020, the defendant seeks the following orders which are stated to be sought following the setting aside or variation of the order for costs made by the court in the defendant’s favour on the ordinary basis on 18 June 2020:

“1.  The plaintiff is to pay the costs of the defendant of the proceedings up to and including 13 June 2020 2019 on an ordinary basis as agreed or assessed.

2.  The plaintiff is to pay the costs of the defendant of the proceedings from 14 June 2020 2019, including the costs of and associated with this Motion, on an indemnity basis as agreed or assessed.”

3. In support of the orders sought in the Amended Notice of Motion, the defendant read two affidavits of Michael James Cooper dated 30 June 2020 and 1 July 2020, respectively. Annexed to the earlier affidavit is a letter dated 13 June 2019 from the solicitors for the defendant to the solicitors for the plaintiff which was emailed to them on that date serving an Offer of Compromise dated 13 June 2019. The Offer of Compromise dated 13 June 2019 is stated to be made in accordance with Part 20.26 of…