Richtoll Pty Ltd v WW Lawyers (in Liquidation) Pty Ltd (No 2)

[2016] NSWSC 578

Supreme Court

New South Wales

Medium Neutral Citation:	Richtoll Pty Ltd v WW Lawyers (in Liquidation) Pty Ltd (No 2) [2016] NSWSC 578
Hearing dates:	On the papers
Date of orders:	09 May 2016
Decision date:	09 May 2016
Jurisdiction:	Common Law
Before:	Hoeben CJ at CL
Decision:	(1)   The costs order made in this matter on 19 April 2016 is set aside.  (2)   In lieu thereof, the following order is made: “The plaintiffs are to pay the defendant’s costs on an ordinary basis up to and including 2 September 2015 and on an indemnity basis from 3 September 2015.”
Catchwords:	COSTS – Offer of Compromise which complied with the rules – no reason given for why Offer of Compromise not accepted – no reason why Court would “order otherwise” – special costs order should be made.
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW)
Category:	Costs
Parties:	Richtoll Pty Ltd – First Plaintiff Ongoing Financial Services Pty Ltd – Second Plaintiff WW Lawyers (In Liquidation) Pty Ltd - Defendant
Representation:	Counsel: Mr AJ Abadee/Mr EWL Anderson – Plaintiffs Mr DA Priestley SC - Defendant   Solicitors: Garland Hawthorn Brahe – Plaintiffs Meridian Lawyers – Defendant
File Number(s):	2010/096258

Judgment

1. HOEBEN CJ at CL:

Nature of Proceedings

The principal judgment was handed down on 19 April 2016. Judgment was entered for the defendant with an order that the plaintiffs were to pay the defendant’s costs.

2. At the time judgment was handed down, directions were made that any submissions in respect of a special costs order should be made in writing within seven days. On 21 April 2016 submissions were received from the defendant seeking such a special costs order. By email dated 27 April 2016 the plaintiffs advised that they did not wish to make submissions in response to those sent to the Court by the defendant.

3. This judgment relates to the defendant’s application for a special costs order.

Defendant’s submissions

4. The defendant seeks a variation of the costs order in the judgment as follows:

“The plaintiffs are to pay the defendant’s costs on an ordinary basis up to and including 2nd September 2015 and on an indemnity basis from 3 September 2015.”

5. In support of that application, the defendant relies upon an offer of compromise made by it, dated 2 September 2015. The defendant also relies upon a written offer, dated 31 August 2015. Neither offer was accepted. In the absence of any submissions by the plaintiffs, I have proceeded on the basis that the plaintiffs’ solicitors received those offers.

6. The offer of compromise was in the following terms:

“OFFER OF COMPROMISE

The defendant offers to compromise the claim brought by the First and Second Plaintiffs against it on the following terms:

1.   Judgment for the First and Second Plaintiffs in the sum of $250,000.

3.   This offer will remain open for acc3eptance for twenty eight (28) days.

4. This offer is made in accordance with Rule 20.26 of the Uniform Civil Procedure Rules 2005 (NSW).”

7. Rule 20.26 of the Uniform Civil Procedure Rules (UCPR) relevantly provides:

“20.26(1) In any proceedings, any party may, by notice in writing, make an offer to any other party to compromise any claim in a proceedings, either in whole or in part, on specified terms.

(2)   An offer under this Rule:

(a)   must identify:

(i)   the claim or part of the claim to which it relates; and

(ii)   the proposed orders for disposal of the claim or part of the claim including if a monetary judgment is proposed the amount of that monetary judgment, and

...

(c)   Must not include an amount for costs and must not be expressed to be inclusive of costs; and

(d)   Must bear a statement to the effect that the offer is made in accordance with these Rules.

…

(f)   Must specify the period of time within which the offer is open for acceptance.”

8. The defendant’s offer of compromise complied with UCPR Rule 20.26. The Rules dictate that as the defendant had obtained an order or judgment on the claim no less favourable to it than the terms of the offer, the plaintiffs should pay the defendant’s costs on an indemnity basis from the day after the offer was made unless the Court otherwise orders (UCPR Rule 42.15A).

9. In the absence of any submissions from the plaintiffs and because nothing occurred in the conduct of the trial which would require that the Court “order otherwise”, there is no reason why the Court would “order otherwise”. In those circumstances, the defendant is entitled to the variation of the costs order which it seeks.

Orders

1. The costs order made in this matter on 19 April 2016 is set aside.

2. In lieu thereof, the following order is made:

“The plaintiffs are to pay the defendant’s costs on an ordinary basis up to and including 2 September 2015 and on an indemnity basis from 3 September 2015.”

**********