(1) Defendants' application for indemnity costs dismissed.
(2) Defendants' application pursuant to UCPR Part 42 r 42.35 (for no orders as to costs) dismissed.
(3) Defendants pay the costs of this application.
Catchwords:
COSTS - indemnity costs - offer of compromise "plus costs" - whether offer invalid under the UCPR as not exclusive of costs (r 20.26(2)) - whether defendants should be ordered to pay any costs where the judgment sum was below the threshold (r 42.35) - whether proceedings commenced and continued in the "appropriate court"
Plaintiff: Anne McGlen-McLeod First Defendant: Nathan David Galloway Second Defendant: Daniel Eli Galloway
Representation:
Plaintiff: Mr A P Quinlivan Defendants: Mr S E Torrington (31 January 2012) / Ms A Kmetyk (solicitor) (20 February 2012) Plaintiff: CMC Lawyers Defendants: McCabe Terrill Lawyers
File Number(s):
2009/00338654
Publication restriction:
None
Judgment
These are proceedings for personal injury which proceeded by way of assessment of damages. After a hearing on 10 and 11 October 2011, I made orders on 14 October 2011 as follows:
(1) Judgment for the plaintiff for $700.
(2) Defendants pay plaintiff's costs.
(3) Liberty to restore in relation…
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.
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Details
AGLC
McGlen-McLeod v Galloway (No. 2) [2012] NSWDC 11
Case
[2012] NSWDC 11
Decision Date
CaseChat Overview and Summary
In the case of McGlen-McLeod v Galloway (No. 2), the respondents sought indemnity costs after the applicants, the original defendants, had made an offer of compromise that included the phrase "plus costs." The applicants argued that this phrase rendered the offer invalid as it did not exclude costs, contrary to UCPR rule 20.26(2). Additionally, the applicants sought an order that no costs be awarded because the judgment sum was below the threshold set out in UCPR rule 42.35. The applicants also contended that the proceedings were not commenced and continued in the appropriate court, as required by UCPR rule 42.36.
The court examined whether the phrase "plus costs" in the offer of compromise made the offer invalid, as per UCPR rule 20.26(2). The court also considered whether the applicants should be ordered to pay costs because the judgment sum was below the threshold outlined in UCPR rule 42.35. Furthermore, the court assessed if the proceedings were conducted in the appropriate court, as per UCPR rule 42.36. The court held that the offer of compromise was not invalid due to the inclusion of the phrase "plus costs" and that the applicants should be ordered to pay costs. The court also found that the proceedings were conducted in the appropriate court.
The court dismissed the applicants' application for indemnity costs and their application for no orders as to costs. The court ordered the applicants to pay the respondents' costs of the application. The court reasoned that the inclusion of "plus costs" in the offer of compromise did not render the offer invalid, and the proceedings were conducted in the appropriate court. Additionally, the court determined that the applicants should be ordered to pay costs, despite the judgment sum being below the threshold, because the applicants had not complied with UCPR rule 20.26(2).
Orders
Orders of the court
(1) Defendants' application for indemnity costs dismissed.
(2) Defendants' application pursuant to UCPR Part 42 r 42.35 (for no orders as to costs) dismissed.