Prasad v Woolworths Limited (No 2)

District Court

New South Wales

Medium Neutral Citation:	Prasad v Woolworths Limited (No 2) [2017] NSWDC 437
Hearing dates:	13 April 2017
Date of orders:	13 April 2017
Decision date:	13 April 2017
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1)   The defendant pay the plaintiff’s costs up to and including 7 March 2017. (2)   The plaintiff pay the defendant’s costs from and including 8 March 2017.
Catchwords:	COSTS - party/party - offer of compromise - Calderbank offer - whether offer open for a reasonable period - small difference between judgment and offer - failure of offeror to admit liability - liability not genuinely in dispute
Legislation Cited:	Uniform Civil Procedure Rules 2005, Pt 42, r 20.26, r 42.13A
Cases Cited:	Prasad v Woolworths Limited [2017] NSWDC 79
Category:	Costs
Parties:	Premila Prasad (plaintiff) Woolworths Limited ACN 000 014 675 (defendant)
Representation:	Counsel: Mr A Parker (plaintiff) Mr R Gambi (defendant)   Solicitors: Compensation Partners Pty Ltd (plaintiff)
File Number(s):	2016/37789
Publication restriction:	None

Judgment

1. The defendant, Woolworths, seeks indemnity costs, relying upon an offer of compromise made under the Uniform Civil Procedure Rules 2005. The offer was for a sum of $300,000 plus costs, which is slightly more favourable to Mrs Prasad, the plaintiff, than the $293,000 judgment awarded (see Prasad v Woolworths Limited [2017] NSWDC 79).

2. Woolworths, in the alternative, seeks that if the offer of compromise rules do not apply to the offer, the offer should be treated as a Calderbank offer. It claims that it is entitled to indemnity costs because the rejection of the offer by Mrs Prasad was unreasonable.

3. The only issue about whether the offer of compromise was a complying offer under the rules is whether it was open for a reasonable period. This is a requirement imposed by r 20.26(5)(b), which provides that:

“20.26 Making of offer

…

(5) The closing date for acceptance of an offer:

(a) in the case of an offer made two months or more before the date set down for commencement of the trial—is to be no less than 28 days after the date on which the offer is made, and

(b) in any other case—is to be such date as is reasonable in the circumstances.”

4. Thus in the final two months before a trial, the rules do not impose a specific period for which the offer must remain open.  This does not mean that it is reasonable for an offer to remain open for any period no matter how small.  For example, the 28-day period applying to an offer made two months before the trial would expire about one month prior to the trial. There is force in the submission that if a later offer is made, expiring at a date earlier than a month before the trial, it might nevertheless be an unreasonable period judged against the statutory provisions. That is to say that an offer made later should not expire earlier than an earlier offer was required to remain open.  That,…