Loulach Developments Pty Ltd v Roads and Maritime Services (No 2)

The matter between Loulach Developments Pty Ltd and the Roads and Maritime Services was heard in the Supreme Court of New South Wales. The plaintiff, Loulach Developments, brought a claim against the defendant, Roads and Maritime Services, in relation to alleged contractual breaches and statutory violations connected to roadworks. The plaintiff sought damages, while the defendant, in turn, applied for an order of special costs under the Civil Procedure Act 2005 (NSW) due to the plaintiff's unsuccessful pursuit of the claim.

The primary legal issue before the court was whether the defendant's offer to the plaintiff to settle the claim for $100,000 constituted a genuine offer of compromise. The court also needed to determine if this satisfied the conditions for a presumptive entitlement to special costs under section 60D of the Civil Procedure Act 2005 (NSW). If not, the court was required to consider whether it should otherwise order special costs in favour of the defendant.

In its judgment, the court found that the defendant's offer was indeed a genuine offer of compromise as it was made in good faith and was not a token offer. The court considered the timing of the offer, the context in which it was made, and the fact that the plaintiff did not accept it. Consequently, the court held that the defendant was presumptively entitled to special costs. Additionally, the court determined that even if the presumptive entitlement did not apply, it should still make a special costs order in favour of the defendant due to the unreasonableness of the plaintiff's claim. The court ultimately ordered the plaintiff to pay the defendant's special costs, reflecting its view on the merit and conduct of the case.