Byers v Frith (No 3)

District Court

New South Wales

Medium Neutral Citation:	Byers v Frith (No 3) [2017] NSWDC 451
Hearing dates:	8 September 2017
Date of orders:	08 September 2017
Decision date:	08 September 2017
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1) Note the application by the second and third defendants for further orders after entry of judgment but within the 14 days allowed under r 36.16(3A) of the Uniform Civil Procedure Rules 2005. (2)   Make orders in accordance with paras 2 and 6 of the notice of motion dated 13 July 2017. (3)   Order the costs of the notice of motion to be part of the costs of the proceedings.
Catchwords:	COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers
Legislation Cited:	Uniform Civil Procedure Rules 2005, Pt 20, r 20.26, r 20.30, r 36.16, r 42.6, r 42.15A
Cases Cited:	Byers v Frith (No 2) [2017] NSWDC 165 Macplan Logistics Systems Pty Ltd v Baxter Healthcare Pty Ltd (1996) 39 NSWLR 324
Category:	Costs
Parties:	Malcolm Byers - plaintiff Jan Frith - first defendant Kelvin Hutchinson - second defendant Vision In Action Pty Ltd - third defendant
Representation:	Counsel: Mr P Gaffney – second and third defendants   Solicitors: Hallewell Law – second and third defendants
File Number(s):	2014/24350
Publication restriction:	None

Judgment

1. On 29 June 2017 I gave judgment in favour of the defendants and ordered the plaintiff to pay the defendants' costs. [1] Within the two-week period provided by r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (“UCPR”), the second and third defendants made an application for additional or varied orders to include provision for some of the costs to be assessed on an indemnity basis. The first defendant makes no further application in respect of costs and does not appear. The plaintiff also did not appear despite having an interest in the outcome of the motion. I accepted the second and third defendants’ election to proceed in the absence of the plaintiff.

   1. Byers v Frith (No 2) [2017] NSWDC 165.

2. So far as the application by the second defendant for indemnity costs is concerned, a number of offers are in evidence. The primary offer relied upon by the second defendant is an offer dated 28 August 2014, which was in the following relevant terms:

"Without prejudice except as to costs

…

My client offers to settle the entire claim made by your client against my client, the second defendant, in these proceedings on the following terms:

1. That the second defendant pay the plaintiff $10,000.

2.  That orders be made in proceedings no 2014/24350 in the following terms:

1. Judgment for the Second Defendant against the Plaintiff.

2. No order as to costs.

3. The offer is made in accordance with the Uniform Civil Procedure Rules 2005 (NSW) and in particular r 20.26

4. In the alternative, my client reserves his right to rely on this offer on the question of…