CITATION: Leslie Gaskin v Matthew Ollerenshaw [2010] NSWSC 874 HEARING DATE(S): In the papers
JUDGMENT DATE :
6 August 2010JUDGMENT OF: Garling J DECISION: Order for the plaintiff to pay the defendant's costs on an ordinary basis up to and including 29 July 2009, and on an indemnity basis from 30 July 2009. CATCHWORDS: COSTS – Offer of compromise – Calderbank letter – Not unreasonable to refuse offer – Offer of compromise under UCPR, r 20.26 – Offer not accepted - Whether any basis for Court to “otherwise order” – Whether exceptional circumstances established by offeree – Order for indemnity costs assessed from date of the offer of compromise under UCPR, r 20.26. LEGISLATION CITED: Civil Procedure Act 2005
Evidence Act 1995
Uniform Civil Procedure Rules 2005CATEGORY: Consequential orders CASES CITED: Commonwealth of Australia v Gretton [2008] NSWCA 117
Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322
Gaskin v Ollerenshaw [2010] NSWSC 791
Hillier v Sheather (1995) 36 NSWLR 414
Jones v Bradley (No. 2) [2003] NSWCA 258
Leichhardt Municipal Council v Green [2004] NSWCA 341
Maitland Hospital v Fisher [No.2] (1992) 27 NSWLR 721
Melchior & Ors v Sydney Adventist Hospital & Anor [2009] NSWSC 65
Morgan v Johnson (1998) 44 NSWLR 578
Shellharbour City Council v Johnson [No.2] (2006) 67 NSWLR 308
SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323
Wills v Bigmac Pty Ltd & Anor (Federal Court of Australia, Heerey J, 9 December 1994, unreported)PARTIES: Leslie Gaskin (P)
Matthew Ollerenshaw (D)FILE NUMBER(S): SC 2006/266967 COUNSEL: M Maxwell and M Gilbert (P)
R A Cavanagh (D)SOLICITORS: Brydens Law Office (P)
Henry Davis York (D)
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONGARLING J
FRIDAY, 6 AUGUST 2010
2006/266967 LESLIE GASKIN v MATTHEW OLLERENSHAW
JUDGMENT – On the Application for Indemnity Costs
1 HIS HONOUR: On 16 July 2010, I delivered judgment in the principal proceedings: Gaskin v Ollerenshaw [2010] NSWSC 791.
2 I ordered that there be judgment for the defendant and that the plaintiff pay the defendant’s costs.
3 I granted leave to the defendant to make any application for an order for costs on any basis other than the ordinary basis, within seven days. I ordered the plaintiff to file and serve any affidavit and submissions in opposition to any application for indemnity costs within a further seven days.
4 On 23 July 2010, the defendant made an application for an order that it have costs on an indemnity basis from 14 January 2008, or in the alternative, from 29 July 2009. In support of this application, the defendant relied on an affidavit of Zara Officer sworn 23 July 2010.
5 The plaintiff led no evidence and made no submissions on the defendant’s application within the time fixed by the Court’s order. A letter of 5 August 2010 from the plaintiff’s solicitors to the Court confirmed that the plaintiff made no submissions.
Calderbank Offer of Settlement
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- Case
- [2010] NSWSC 874
- Decision Date
CaseChat Overview and Summary
The legal issues that the court had to decide included whether there was any basis for the court to order indemnity costs when the offer of compromise was not accepted, and if exceptional circumstances were established by the offeree. The court needed to determine whether the defendant's refusal of the offer was unreasonable and if it warranted an order for indemnity costs. Another issue was whether the exceptional circumstances necessary to avoid such an order were present.
In delivering the judgment, the court examined the nature of the offer of compromise and the circumstances surrounding its rejection. The court found that the offer was not unreasonable and that there was no basis for the court to otherwise order costs. The court also determined that exceptional circumstances had not been established by the defendant to avoid the order for indemnity costs. The court held that it was appropriate to assess the indemnity costs from the date of the offer of compromise, in line with the relevant rule. The plaintiff's application for indemnity costs was thus successful.
The court ordered that the defendant pay the plaintiff's costs of the proceeding from the date of the offer of compromise up until the date of judgment. This included the costs associated with the application for indemnity costs. The defendant was also ordered to pay interest on the costs from the date of the offer of compromise until the date of judgment.
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