Supreme Court
New South Wales
Medium Neutral Citation: Egan v Mangarelli & Ors (No 2) [2012] NSWSC 1226 Hearing dates: 3 October 2012 Decision date: 17 October 2012 Jurisdiction: Common Law Before: HOEBEN JA Decision: I decline to make a special costs order in favour of the defendants.
The costs order will remain that which is set out in the principal judgment.
The defendants are to pay the plaintiff's costs of this application.
Catchwords: COSTS - Offer of Compromise - offer provides for payment of a specified amount "plus costs as agreed or assessed" - whether offer complied with r 20.26 UCPR - conflicting decisions of Court of Appeal - whether offer conflicts with costs rule - in the alternative whether offer operated as a Calderbank offer - meaning of "unless the Court orders otherwise" in r 42.15 UCPR - whether "exceptional circumstances" required for order - conflicting decisions of Court of Appeal - what constitutes "exceptional circumstances" - unusual circumstances of case under consideration amount to exceptional circumstances. Legislation Cited: Uniform Civil Procedures Rules 2005 Cases Cited: Ambulance Service of NSW v Worley (No.2) [2006] NSWCA 236; (2006) 67 NSWLR 719
Barakat & Ors v Bazdarova [2012] NSWCA 140
Caine v Lumley General Insurance Ltd (No 2) [2008] NSWCA 109,
Cheal Industries Pty Ltd - Fitzpatrick v Cheal [2012] NSWSC 932
Erect Safe Scaffolding (Australia) Pty Ltd v Sutton & Anor (No.2) [2008] NSWCA 289
Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No.2) [2008] NSWCA 85
Macquarie Radio Network Pty Ltd v Arthur
Dent (No.2) [2007] NSWCA 339
Nominal Defendant v Hawkins [2011] NSWCA 93; 58 MVR 362
Old v McInnes & Hodgkinson [2011] NSWCA 410
Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368
San v Rumble (No.2) [2007] NSWCA 259, 48 MVR 492
The Uniting Church v Takacs (No.2) [2008] NSWCA 172
Vieira v O'Shea (No 2) [2012] NSWCA 121Category: Costs Parties: Mitchell Joseph William Egan - Plaintiff
Johnny Carmine Mangarelli - First Defendant
Westbus Region 3 Pty Ltd - Second DefendantRepresentation: Counsel:
Mr P Frame - Plaintiff
Mr DE Grieve QC - Defendants
Solicitors:
Slater and Gordon Lawyers - Plaintiff
Vardanega Roberts Solicitors - Defendants
File Number(s): 2010/126606
Judgment
HIS HONOUR:
Nature of proceedings
The judgment in the principal proceedings was handed down on 7 August 2012. Judgment was entered in favour of the defendants and the plaintiff was ordered to pay the defendants' costs. After judgment had been delivered, the defendants advised the Court that they had served an Offer of Compromise, in accordance with the rules, dated 21 October 2011. The defendants sought a special costs order from that date. The plaintiff opposed the making of such an order.
This judgment relates to that costs argument.
Submissions and consideration
By letter dated 21 October 2011, the defendants served on the solicitors for the plaintiff an offer which purported to be made pursuant to rule 20.26 of the Uniform Civil Procedures Rules 2005 (UCPR).…
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- Case
- [2012] NSWSC 1226
- Decision Date
CaseChat Overview and Summary
The court found that the offer was not compliant with r 20.26 as it did not specify a definite amount of money payable. However, the offer could be considered a Calderbank offer, and the court could order that costs be paid on a basis different to that specified in the offer if there were exceptional circumstances. The court held that the term "unless the Court orders otherwise" in r 42.15 UCPR did not require exceptional circumstances for an order to be made. In this case, the unusual circumstances, including the offer's non-compliance with r 20.26, constituted exceptional circumstances warranting a costs order different from that specified in the offer.
The court ordered that the applicant's costs be paid on an indemnity basis, as opposed to the costs as agreed or assessed basis specified in the offer. This decision was based on the exceptional circumstances present in the case, including the non-compliance with r 20.26 and the need to ensure just outcomes in the proceedings. The court emphasised the importance of the proper use of the offer of compromise mechanism and the need for clarity in such offers to avoid potential disputes over costs.
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