Dream Developments Pty Limited v Samuel Whitney (No 2)

Supreme Court

New South Wales

Case Title:

Dream Developments Pty Limited v Samuel Whitney (No 2)

Medium Neutral Citation:

[2012] NSWSC 339

Hearing Date(s):

13 July 2011

Decision Date:

31 May 2012

Jurisdiction:

Before:

Adams J

Decision:

1.Motion dismissed with costs.

2.The defendant to pay the plaintiff's costs in the Local Court as agreed or assessed on an ordinary basis up to 15 April 2010 and thereafter on an indemnity basis.

3.The matter is adjourned for the parties to make submissions in due course as to the appropriate order in relation to the appeal.

4.I give leave to the parties to apply on seven days' notice.

Catchwords:

COSTS - offers of compromise - Calderbank offers.

Legislation Cited:

Uniform Civil Procedure Rules 2005

Cases Cited:

Old v McInnes and Hodgkinson [2011] NSWCA 410
Calderbank v Calderbank [1975] 3 All ER 333; [1975] 3 WLR 586

Texts Cited:

Category:

Costs

Parties:

Dream Developments Pty Limited (Plaintiff)
Samuel Whitney (Defendant)

Representation

- Counsel:

R Bell (Plaintiff)
B Illkovski (Defendant)

- Solicitors:

Bay Legal (Plaintiff)
Carroll & O'Dea Lawyers (Defendant)

File number(s):

2010/412999

Publication Restriction:

JUDGMENT

1. On 23 February 2012 I upheld the appeal of Dream Developments from a judgment in the local court and quashed the order as to costs. I made the additional orders as follows -

   (i) within seven days of the date of this judgment the parties are to file minutes of agreed orders as to all costs, if they do not agree, written submissions on the appropriate orders, and;

   (ii) the defendant is to pay the costs of the summons (unless the party files written submissions as to costs of the summons within seven days of the date of this judgment).

2. The decision of the Court of Appeal in Old v McInnes and Hodgkinson [2011] NSWCA 410 (Old) was delivered after argument had been completed and before my judgment was delivered. A copy of this decision was made available to me on 22 February 2012 by counsel for the plaintiff pursuant to Rules 31 and 33 of the NSW Barristers Rules (although, as it happened, it had come to my attention independently). The defendant did not then seek to make further submissions in reliance on the decision.

3. Following my judgment (which discussed Old briefly) the defendant, on 9 March 2012, filed a Notice of Motion under UCPR Pt 36 r 15(1) to set aside the orders previously made and seeking orders dismissing summons and costs. As I understand it, the defendant contends that the decision in Old is binding authority on point against the case propounded by the plaintiff and accepted by me in the appeal. In addition to discussing the effect of Old, counsel for the defendant also took issue with my view about common expressions used in connection with offers as to costs, referring to the terms of UCPR 42.13A(2).

4. With respect to Old it is I think sufficient to say that the offer was markedly different to that which was made in this case.…