District Court
New South Wales
Medium Neutral Citation: McGlen-McLeod v Galloway (No. 2) [2012] NSWDC 11 Hearing dates: 31 January and 20 February 2012 Decision date: 20 February 2012 Jurisdiction: Civil Before: Gibson DCJ Decision: (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" Legislation Cited: Civil Procedure Act 2005 (NSW), s 56
Uniform Civil Procedure Rules 2005 (NSW), rr 20.26 and 42.35Cases Cited: Agricultural & Rural Finance Pty Ltd v Atkinson [2010] NSWSC 1396
Brakikki Pty Limited v Gofur (No 2) [2011] NSWDC 199
Calderbank v Calderbank [1975] 3 All ER 333
Channel Seven Sydney Pty Ltd v Mahommed (No 2) (2011) 278 ALR 129, [2011] NSWCA 6
Dean v Stockland Property Management Pty Ltd (No 2) [2011] NSWCA141
Edwards v Devine (No 2) [2011] NSWDC 3
Grbavac v Hart [1997] 1 VR 154
Hazeldene's Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435
Insurance Australia Ltd t/as NRMA Insurance v Checchia [2011] NSWCA 101
Jones v Sutton (No 2) [2005] NSWCA 203
Macquarie Radio Network Pty Ltd v Arthur Dent (No 2) [2007] NSWCA 33
Morgan v Johnson (1998) 44 NSWLR 578
Nominal Defendant v Hawkins [2011] NSWCA 93
Old v McInnes [2011] NSWCA 410
Pacanowski v Simon Wakeman & Associates (No 2) [2010] NSWCA 40
Pritchard v Trius Constructions Pty Ltd (No 2) [2011] NSWSC 1114
Rosebanner Pty Ltd v EnergyAustralia (No 2) [2011] NSWCA 150
Separovich v Ferrao (No 2) [2011] NSWCA 346
Smart Distribution Services Pty Ltd v General Wholesale Pty Ltd (No 3) (2010) 11 DCLR (NSW) 38; [2010] NSWDC 108
South Eastern Sydney Area Health Service v King [2006] NSWCA 2
Stevanovic v Mcindoe (Costs) [2011] NSWDC 43
Tasevska v Tasevska [2011] NSWSC 411
Taylor v Port Macquarie-Hastings Council [2010] NSWLEC 153
Tuheta Pty Ltd v Ehrenfeld [2010] NSWSC 799
Wako Kwikform v Jabbour [2011] NSWSC 1328
Ying v Song [2011] NSWSC 618Texts Cited: - Category: Costs Parties: Plaintiff: Anne McGlen-McLeod First Defendant: Nathan David Galloway
Second Defendant: Daniel Eli GallowayRepresentation: 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…
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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).
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.
(3) Defendants pay the costs of this application.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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