(ix) the defendants shall pay interest on any amount paid by the plaintiff as costs provided that:
(a) the costs, upon which interest is payable, are agreed or allowed on assessment;
(b) interest is calculated from the date of payment of the said costs by the plaintiff and continues only until such time as payment by the defendants of said costs and interest has occurred but not beyond the date of judgment."">
CITATION: Levy v Bergseng (No 2) [2008] NSWSC 958 HEARING DATE(S): 24 April 2008 and subsequent written submissions
JUDGMENT DATE :
17 September 2008JURISDICTION: Common Law JUDGMENT OF: Rothman J DECISION: (i) the application for indemnity costs is dismissed;
(ii) the orders of 4 April 2008 in this matter be varied by adding two new orders:
"(viii) the defendants pay the plaintiff’s costs of the preparation of the submission in reply before the Costs Review Panel;
(ix) the defendants shall pay interest on any amount paid by the plaintiff as costs provided that:
(a) the costs, upon which interest is payable, are agreed or allowed on assessment;
(b) interest is calculated from the date of payment of the said costs by the plaintiff and continues only until such time as payment by the defendants of said costs and interest has occurred but not beyond the date of judgment."
CATCHWORDS: COSTS – appeal – offer made – indemnity costs sought – offer involved each party bearing own costs – not comply with Rules – not intended to have effect otherwise than in accordance with rules – no indemnity costs – order for reasonable costs below – order for interest on costs paid. LEGISLATION CITED: Legal Profession Act 1987
Legal Profession Act 2004
Suitors’ Fund Act 1951CATEGORY: Consequential orders CASES CITED: Associated Confectionery (Aust) Ltd v Mineral and Chemical Traders Pty Ltd (1991) 25 NSWLR 349
Levy v Bergseng [2008] NSWSC 294
Theiss Contractors Pty Ltd v SCI Operations Pty Ltd (Supreme Court of New South Wales, Rogers CJ in Comm D, 21 September 1990, unreported)
Trustee for Salvation Army v Becker (No 2) [2007] NSWCA 194PARTIES: Leonard Ari LEVY (Plaintiff, Cross-Defendant)
Karin Elizabeth BERGSENG (First Defendant, First Cross-Plaintiff)
Peter Edward McCROHON (Second Defendant, Second Cross-Plaintiff)
Christine Louise PERRY (Third Defendant, Third Cross-Plaintiff)FILE NUMBER(S): SC 10245/2007 COUNSEL: M Castle (Plaintiff, Cross-Defendant)
J Sharpe (Defendants, Cross-Plaintiffs)SOLICITORS: DG Thompson (Plaintiff, Cross-Defendant)
Strategy Legal (Defendants, Cross-Plaintiffs)
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONROTHMAN J
17 SEPTEMBER 2008
JUDGMENT10245/07 Leonard Ari LEVY v Karin Elizabeth BERGSENG & Ors (No 2)
1 HIS HONOUR: On 4 April 2008, the Court issued substantive orders in this appeal: Levy v Bergseng [2008] NSWSC 294 (“the earlier judgment”). The appellant (Mr Levy) was successful in an appeal against the decision of a Costs Review Panel, made under the Legal Profession Act 2004, in which the Costs Review Panel substantially varied the determination of the Costs Assessor. This judgment should be read in conjunction with the earlier…
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- AGLC
- Levy v Bergseng (No 2) [2008] NSWSC 958
- Case
- [2008] NSWSC 958
- Decision Date
CaseChat Overview and Summary
The High Court held that the offer, although not strictly compliant with the rules, was intended to have effect only in accordance with those rules. The court determined that the offer did not meet the procedural requirements for an indemnity costs order as it was not made in the prescribed manner. However, the court also found that the offer was not intended to have any effect outside of the rules and thus, in this specific context, it could still be considered. As a result, the court concluded that no indemnity costs were warranted. Instead, the court ordered that the defendant pay reasonable costs of the appeal up to the time of the offer and interest on the costs that had already been paid.
In light of the above, the High Court dismissed the appeal regarding indemnity costs. It also ordered that the defendant pay the plaintiff's reasonable costs of the appeal up to the time of the offer, as well as interest on the costs that had been paid. This decision underscored the importance of strict compliance with court rules concerning offers to settle and the potential consequences of failing to adhere to these rules.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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