Gulab Khan v Matthew Rathjen (No 2)

District Court

New South Wales

Medium Neutral Citation:	Gulab Khan v Matthew Rathjen (No 2) [2016] NSWDC 213
Hearing dates:	1 September 2016
Date of orders:	15 September 2016
Decision date:	15 September 2016
Jurisdiction:	Civil
Before:	Mahony SC DCJ
Decision:	Defendant to pay plaintiff’s costs on an indemnity basis from 3 December 2015. For orders see [44]
Catchwords:	Costs – whether successive Offers of Compromise were invalid; discretion to “otherwise order” indemnity costs
Legislation Cited:	Civil Procedure Act 2005, ss 3, 56, 98 Evidence Act 1995, s 131 Uniform Civil Procedure Rules 2005, rr 20.26, 20.29, 42.14,
Cases Cited:	Calderbank v Calderbank [1975] 3 All ER 333 Dibbs v Emirates (No 2) [2015] NSWSC 1786 Helm v Pel-Air Aviation Pty Limited (No 3) [2015] NSWSC 857 McGlashan v QBE Insurance (Australia) Limited (No 4) [2014] NSWSC 882 Neville v Lam (No 4) [2014] NSWSC 1088 Norris v Routley [2016] NSWSC 147 NT Power Generation Pty Limited v Power and Water Authority (2004) 219 CLR 90
Category:	Costs
Parties:	Gulab Khan (Plaintiff) Matthew Rathjen (Defendant)
Representation:	Counsel: R O’Keefe (Plaintiff) N Chen (Defendant)   Solicitors: Turner Freeman HWL Ebsworth Lawyers
File Number(s):	14/157331
Publication restriction:	Nil

Judgment ON COSTS

Introduction

1. On 1 September 2016 the Court heard two Notices of Motion. They were:

1. Defendant’s Notice of Motion filed on 12 August 2016, seeking an order that execution of the judgment be stayed depending determination of the defendant’s appeal to the Court of Appeal; and

2. Plaintiff’s Notice of Motion filed on 21 July 2016, seeking the following relief:

1. Pursuant to Section 98(1)(c) of the Civil Procedure Act 2005 and Uniform Civil Procedure Rules 2005 (“UCPR”) 42.14, the defendant to pay the plaintiff’s costs on an indemnity basis from 30 March 2015 and on an ordinary basis prior to this date.

2. In the alternative to Order 1, pursuant to Section 98(1)(c) of the Civil Procedure Act 2005 and UCPR 42.14, the defendant to pay the plaintiff’s costs on an indemnity basis from 4 September 2015 and on an ordinary basis prior to this date.

3. In the alternative to Order 2, pursuant to Section 98(1)(c) of the Civil Procedure Act 2005 and UCPR 42.14, the defendant to pay the plaintiff’s costs on an indemnity basis from 2 December 2015 and on an ordinary basis prior to this date.

4. The costs of the defendant’s Notice of Motion filed 4 December 2015 to vacate the hearing date to be costs in the cause.

5. The costs of this Notice of Motion to be costs in the cause.

2. On 15 July 2016 in the principal judgment I ordered a verdict and judgment in favour of the plaintiff in the sum of $206,000.00. The stay of execution sought by the defendant was not opposed, and the order sought in the defendant’s Notice of Motion was made.

The evidence

3. The plaintiff relied on an affidavit of Sally Gleeson, solicitor, sworn on 20 July 2016. That affidavit had exhibited to it three Offers of Compromise purported to have been…