District Court
New South Wales
Medium Neutral Citation: Devic v AMP Capital Investors Limited (No 2) [2022] NSWDC 444 Hearing dates: Not applicable Date of orders: 05 October 2022 Decision date: 05 October 2022 Jurisdiction: Civil Before: Weinstein SC DCJ Decision: Order (3) of the principal judgment is varied so that the plaintiff is to pay the defendant’s costs on the usual basis up to 21 June 2021 and the defendant’s costs on an indemnity basis thereafter.
Catchwords: COSTS – indemnity costs order against plaintiff – rule 42.15A UCPR – Calderbank letter sent by defendant - whether it was reasonable for plaintiff to reject Calderbank offer – evidence available at the time of the offer – whether Covid-19 delays result in greater costs for plaintiff - whether indemnity costs order punitive
Legislation Cited: Cases Cited: Devic v AMP Capital Investors Limited [2022] NSWDC 371
Dunstan v Rickwood (No 2) [2007] NSWCA 266
Hillier v Sheather (1995) 36 NSWLR 414
Leach v The Nominal Defendant (No 2) [2014] NSWCA 391
Morgan v Johnson (1998) 44 NSWLR 578
Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368
Category: Costs Parties: Jelena Devic (Plaintiff)
AMP Capital Investors Limited (Defendant)Representation: Solicitors:
Brydens Lawyers (Plaintiff)
McCabes (Defendant)
File Number(s): 2020/249647 Publication restriction: None
JUDGMENT
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On 26 August 2022, I gave judgment for the defendant against the plaintiff in Devic v AMP Capital Investors Limited [2022] NSWDC 371 (the principal judgment). I made the following orders:
(1) Verdict and judgment for the defendant;
(2) The exhibits are to be returned;
(3) The plaintiff is to pay the defendant’s costs of the proceedings on the ordinary basis unless a party is able to demonstrate an entitlement for some other costs order;
(4) Liberty to apply on seven (7) days’ notice if further or other orders are required, including as to costs.
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The defendant seeks a variation to order (3) as follows:
(a) The plaintiff to pay the defendant’s costs, as agreed or assessed, on an ordinary basis up to and including 21 June 2021; and
(b) The plaintiff to pay the defendant’s costs, as agreed or assessed, on an indemnity basis from 22 June 2021.
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For the following reasons, I make the variation to order (3) of the principal judgment as sought by the defendant.
The Calderbank letter and Offer of Compromise
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The defendant relies upon a Calderbank letter and an Offer of Compromise annexed to the letter, both dated 21 June 2021, sent by its solicitor to the plaintiff’s solicitor by email on that day. (I observe that at the time of the offer there were two defendants to the action, but nothing turns on that fact.) The offer contained in both documents was an offer by the defendants to compromise the whole of the claim by way of:
(1) Judgment for the plaintiff against the defendants in the…
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- Case
- [2022] NSWDC 444
- Decision Date
CaseChat Overview and Summary
The court was required to consider several legal issues, including whether it was reasonable for Mr Devic to reject the Calderbank offer and whether the evidence available at the time of the offer was sufficient to justify his decision. The court also needed to determine if the COVID-19 delays had a significant impact on the plaintiff's costs and whether the indemnity costs order was punitive rather than compensatory. The court further needed to assess the proportionality of the indemnity costs order in light of the defendant's failure to serve a statement of claim promptly.
The court found that the plaintiff's rejection of the Calderbank offer was reasonable, as there was evidence to suggest that the defendant had delayed in serving a statement of claim, which led to increased costs for the plaintiff. The court held that while the defendant's delay was partly due to COVID-19, it was not the sole reason for the increased costs. However, the court emphasised that the indemnity costs order was not punitive but rather compensatory, intended to cover the defendant's costs that were reasonably incurred due to the plaintiff's unreasonable conduct. The court considered the variation of the costs order, finding that it was appropriate to adjust the order to reflect the costs incurred up to a certain date on a usual basis and thereafter on an indemnity basis.
The final orders of the court varied Order (3) of the principal judgment, such that Mr Devic is to pay the defendant's costs on the usual basis up to 21 June 2021 and the defendant's costs on an indemnity basis thereafter. This decision recognises the impact of COVID-19 delays on the plaintiff's costs while upholding the principle that indemnity costs are awarded to compensate for unreasonable conduct rather than as a punitive measure.
Orders
Orders of the court
Order (3) of the principal judgment is varied so that the plaintiff is to pay the defendant’s costs on the usual basis up to 21 June 2021 and the defendant’s costs on an indemnity basis thereafter.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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