Smart Distribution Services Pty Ltd v General Wholesale Pty Ltd (No 3)

Smart Distribution Services Pty Ltd sought an order from the Federal Circuit Court for the defendant, General Wholesale Pty Ltd, to pay costs incurred during the proceedings. The dispute centred around whether an offer made by the defendant to pay a sum of money, alongside a request for the plaintiff to pay their costs as agreed or assessed, constituted an offer of compromise under the Uniform Civil Procedure Rules 2005 (UCPR). The court had to determine whether such an offer was "exclusive of costs" as required by UCPR rule 20.26(2).

The court examined the language of the offer and the relevant provisions of the UCPR. The plaintiff argued that the defendant's offer did not meet the criteria for an offer of compromise under the UCPR because it did not explicitly exclude costs. The defendant contended that the inclusion of costs within the offer was permissible and did not negate the offer's status as an offer of compromise. The court found that the offer was indeed an offer of compromise as it met the criteria outlined in UCPR rule 20.26(2), which requires the offer to be exclusive of costs.

Consequently, the court ruled that the defendant was to pay the plaintiff's costs up to and including 30 June 2009 on the ordinary basis as agreed or assessed, and from 1 July 2009 on an indemnity basis as agreed or assessed. The court concluded that the defendant's offer was an offer of compromise under the UCPR, and the defendant was obligated to pay the plaintiff's costs as stipulated.