Pacanowski v Simon Wakerman and Associates (No 2)

The application before the Court of Appeal of New South Wales concerned an application to vary previous costs orders made in proceedings between Pacanowski and Simon Wakerman and Associates. The dispute revolved around the reasonableness of rejecting two offers of settlement made by the defendant, which the defendant argued justified an award of indemnity costs.

The primary legal issue before the Court was whether the two offers of settlement constituted a compromise for the purposes of the Uniform Civil Procedure Rules 2005 (NSW), and if so, whether the plaintiff's rejection of these offers was reasonable. Consequently, the Court had to determine if an award for indemnity costs against the plaintiff was justified based on the circumstances surrounding the offers and their rejection.

The Court considered the nature of the offers and the plaintiff's response in light of the relevant provisions of Part 20, Division 4 of the Uniform Civil Procedure Rules 2005 (NSW). The Court's reasoning focused on whether the offers met the criteria for a compromise and whether the plaintiff's decision not to accept them was objectively reasonable in the context of the litigation. The Court ultimately found that the application to vary the previous costs orders should be dismissed.

The Court ordered that the application to vary the orders made on 10 November 2009 be dismissed, and there was no order as to the costs of this application.