Kain v Mobbs (No 2) - [2008] NSWSC 599

CITATION: Kain v Mobbs (No 2) [2008] NSWSC 599

HEARING DATE(S): 12 June 2008

JUDGMENT DATE :
18 June 2008

JUDGMENT OF: Harrison J

DECISION: Third and fourth defendants' application for indemnity costs refused.

CATCHWORDS: COSTS – application for indemnity costs – Offer of Compromise sent by third and fourth defendants to the plaintiff offering settlement in terms "judgment and verdict for [those defendants] with each party to pay their own costs" – whether genuine offer of compromise – whether discretion to award indemnity costs should be exercised - COSTS – Offer of Compromise - offer not bear a statement to the effect that the offer was made in accordance with the rules, contrary to UCPR 20.26(3)(a) - whether offer valid otherwise than as a Calderbank offer

LEGISLATION CITED: Uniform Civil Procedure Rules 2005

CATEGORY: Consequential orders

CASES CITED: Herning v GWS Machinery Pty Ltd (No 2) [2005] NSWCA 375
Kain v Mobbs [2008] NSWSC 383
Leichhardt Municipal Council v Green [2004] NSWCA 341
Szabo v Battye (No 2) [2006] NSWSC 1392

PARTIES: Cosmo Joel Kain by his tutor Shirlee Kain (Plaintiff)
Janette Mobbs (First defendant)
Nicholas Heath Mobbs (Second defendant)
Surfside Bus Lines Pty Ltd (Third defendant)
Roland Lutz (Fourth defendant)

FILE NUMBER(S): SC 20077 of 2003

COUNSEL: I J McGillicuddy (Plaintiff)
P J Deakin QC with P J Nolan (First and second defendants)
K P Rewell SC (Third and fourth defendants)

SOLICITORS: Stacks Goudkamp (Plaintiff)
Moray & Agnew (First and second defendants)
Keddies (Third and fourth defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HARRISON J

18 June 2008

20077 of 2003 Cosmo Joel Kain by his tutor Shirlee Kain v Janette Mobbs & Ors (No 2)
JUDGMENT

1 HIS HONOUR: I gave judgment in the principal proceedings on 29 April 2008: see Kain v Mobbs [2008] NSWSC 383. I ordered the plaintiff to pay the costs of the third and fourth defendants. Those defendants have now sought an order that those costs be paid on an indemnity basis. That application arises in the following circumstances.

2 On 12 February 2008 the third and fourth defendants served an Offer of Compromise on the plaintiff. It was in the form of a document entitled in the proceedings. At the top of the title page appeared the words "Rules 20.26". The substantive terms of the document were as follows:

(i) Judgment and verdict for the Third and Fourth Defendants with each party to pay their (sic) own costs including disbursements and GST.

(ii) This offer is open to be accepted by the Plaintiff for a period of 15 days after it is made.

3 The offer was not accepted. The third and fourth defendants therefore sought indemnity costs from the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kain v Mobbs (No 2)

Details

AGLC: Kain v Mobbs (No 2) [2008] NSWSC 599
Case: [2008] NSWSC 599
Decision Date: 18 June 2008

CaseChat Overview and Summary

In the matter of Kain v Mobbs (No 2), the plaintiff sought indemnity costs against the third and fourth defendants. The dispute involved an offer of compromise sent by the third and fourth defendants to the plaintiff, proposing settlement terms whereby judgment and verdict would be entered in their favour, with each party bearing their own costs. The primary issue before the court was whether this offer constituted a genuine offer of compromise under the applicable rules and whether the court should exercise its discretion to award indemnity costs.

The court considered the nature and content of the offer, noting that it did not include a statement confirming compliance with the relevant rules. The court also examined the context in which the offer was made, including the timing and the parties' conduct. It was established that the offer was made in circumstances that suggested it was not a genuine attempt to resolve the dispute. The court further evaluated whether the plaintiff's response to the offer was reasonable and whether the defendants' offer was made in good faith. Based on these considerations, the court determined that the offer was not genuine and that the discretion to award indemnity costs should not be exercised.

Consequently, the court dismissed the plaintiff's application for indemnity costs against the third and fourth defendants. The court found that the offer of compromise did not meet the necessary criteria for a genuine attempt at settlement and that the plaintiff was not entitled to the indemnity costs sought. The court's decision underscored the importance of compliance with the procedural requirements for making an offer of compromise and the need for such offers to be made in good faith.

Orders