Subasic v Hewlett-Packard Australia Pty Ltd (No 2)
[2020] ACTSC 195
•17 July 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Subasic v Hewlett-Packard Australia Pty Ltd (No 2) |
Citation: | [2020] ACTSC 195 |
Hearing Dates: | On the papers |
| Submissions received: Decision Date: | 18 February 2020 17 July 2020 |
Before: | McWilliam AsJ |
Decision: | See [55] |
Catchwords: | COSTS – PRE-LITIGATION OFFER OF COMPROMISE – Whether offer was a valid Calderbank offer – whether it was unreasonable to reject the offer – where offer did not sufficiently disclose anticipated cause of action – where later offer made pursuant to Court Procedure Rules 2006 (ACT), r 1002 – where orders made were no less favourable than the offer – solicitor and client costs awarded from date of formal offer |
Legislation Cited: | Court Procedures Rules 2006 (ACT) r 1002, 1010(2)(b), 1726, 1739 |
Cases Cited: | Bankier v HAP2 Pty Ltd (No 3) [2019] QSC 186 Calderbank v Calderbank [1975] 3 WLR 586 Yarra Valley Dairy Pty Ltd v Lemnos Foods Pty Ltd (No 2) [2011] FCA 283 |
Parties: | Melinda Subasic (Plaintiff) Hewlett-Packard Australia Pty Ltd (ACN 004 394 763) (Defendant) |
Representation: | Solicitors Just Dispute Resolution (Plaintiff) Baker & Mackenzie (Defendant) |
File Number: | SC 437 of 2016 |
McWilliam AsJ
On 30 January 2020, I made orders in relation to a claim for breach of contract concerning a former employee of Hewlett-Packard Australia Pty Ltd (ACN 004 394 763) (the plaintiff). Judgment was entered for the plaintiff in the sum of $309,750.39 plus interest in the sum of $61,568.19. Order 2 of the orders made on that day was that the defendant pay the plaintiff’s costs, but the parties were given the opportunity to seek a variation of the costs order: see Subasic v Hewlett-Packard [2020] ACTSC 2 (Subasic) at [117]-[118].
The plaintiff has subsequently applied to the Court for such a variation. She seeks that the defendant pay the plaintiff’s costs on an indemnity basis, or alternatively on a solicitor and client basis. The basis for the variation is an offer of compromise made on 10 May 2016, before litigation commenced, but where litigation was imminent. I will refer to it as ‘the pre-litigation offer’.
If the Court declines to make such an order, the plaintiff seeks in the alternative that the defendant pay the plaintiff’s costs assessed on a party and party basis until 16 October 2017, and thereafter on a solicitor and client basis. The basis for seeking this order is correspondence sent by the plaintiff on 15 September 2017. I will refer to this letter as the formal ‘Offer of Compromise’ as it was stated to be an offer of compromise made under Pt 2.10 of the Court Procedures Rules 2006 (ACT) (Rules).
The defendant seeks that the plaintiff pay its costs thrown away by reason of a number of amendments to her claim over 25 October 2016, 20 December 2017 and 10 December 2018. In the alternative, the defendant seeks no change to the present order that it pay the plaintiff’s costs on the ordinary party and party basis.
For reasons that follow, I have accepted that a valid offer of compromise, falling within the general law principles established by Calderbank v Calderbank [1975] 3 WLR 586, was made before litigation commenced. However, I do not consider that it was unreasonable for the defendant to reject the offer at that point, primarily because there was insufficient detail provided to enable a proper assessment of the defendant’s position.
With regard to the Offer of Compromise under the Rules, I have found that it was validly made in accordance with the Rules and the automatic consequence is that set out in r 1010 of the Rules. There is no reason for the Court ordering otherwise, although I have accepted the defendant’s argument that some of the amendments to the plaintiff’s statement of claim should have sounded in costs.
The pre-litigation offer
The principles applicable to Calderbank offers have been set out in Hulanicki v Walton (No 2) [2015] ACTCA 45 at [13]-[16] and I have also referred to a number of the relevant considerations in Southwell v Staite (No 2) [2019] ACTSC 83 at [7]-[17].
The Court considers whether the offer was a genuine offer to compromise, and if so, whether it was unreasonable in the circumstances for the opposing party to reject the offer. It is not enough that an offer is made in terms which are either equal to, or more favourable to the recipient of the offer than the judgment obtained. Indemnity costs are not justified unless the Court is satisfied that the rejection of an offer that was not bettered at trial was unreasonable: Jones v Bradley (No 2) [2003] NSWCA 258.
Considerations relevant to assessing the reasonableness or otherwise include the stage of the proceedings at which the offer was received, the time allowed to consider the offer, the extent of the compromise offered, the offeree’s prospects of success as at the date of the offer, the clarity with which the terms of the offer were expressed and whether the offer foreshadowed an application for indemnity costs in the event of it being rejected.
A Calderbank offer may be effective even though no proceedings are currently on foot, as was the case here: Ofria v Cameron (No 2) [2008] NSWCA 242 at [27]; referred to recently by Mossop J in Hughes v Sangster (No 2) [2019] ACTSC 202 (Hughes) at [4]. However, regardless of whether the offer is made before litigation or during the proceeding, a recipient of an offer (the offeree) must have available sufficient material to enable an assessment to be made of the prospects of success of the claim, together with an assessment of the damages that may be awarded: Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15 at [9].
It is necessary to consider the detail of the pre-litigation offer in order to assess whether the rejection of it was reasonable. It was in the following terms (emphasis added):
Dear Colleagues,
I act for Ms Melinda Subasic, a former employee of Hewlett-Packard.
Ms Subasic was formerly employed in Canberra in a sales role. In 2010, as a member of her sales team, Ms Subasic was urged by her managers to close as many deals as possible prior to the end of the first half of the HP financial year in order to achieve excellent corporate results. Her managers represented to Ms Subasic that her resulting commission would be uncapped in line with her sales plan.
Mr Paul Robson sent Ms Subasic an email on 12 April 2010 saying among other things:
[W]e have 2 weeks of Q2 to go, we are tracking good numbers and we are forecasting to exist the 1H with YOY constant currency growth, market share growth, and to be well over our aspire targets. This is [an] awesome turnaround from this time last year, and I ask that we all stay focused on closing the business and bringing in our forecasts.
In reliance among other things on the representations made to her both in her sales plan and in subsequent discussions with her managers, Ms Subasic met the demands of her managers and closed sales well above her nominal targets for the period. On 25 May 2010, PP Foo and Adrian Jones sent Ms Subasic an email stating among other things:
Hard work always pays off…[the contents of the complimentary email were set out in full] …In every way, Q2 was an outstanding quarter, and you made it happen. …
Our team was the fastest growing region for ISS and with our Q2 results, we see more share gains coming. …
Mr Adrian Jones sent Ms Subasic an email on 23 June 2010 stating among other things:
Thank you for your dedication and hard work …[the contents of the email were set out in full, again in complimentary terms]. In recognition of your outstanding sales performance in 1H, I’m inviting you to the 2010 FIFA World Cup in South Africa to catch a quarter-final match. Congratulations!
Also on 23 June 2010, Mr Paul Robson sent Ms Subasic an email in relation to Mr Jones’s email of 23 June 2010 stating:
Congratulations Melinda, this is well deserved.
Despite all the congratulations, the prizes and the representations regarding commission, Ms Subasic was not paid the commission shown as owing to her on Omega in full.
There is a considerable amount of interest owing on the unpaid amount, such that I am instructed the amount owing to Ms Subasic inclusive of interest is in excess of $200.000. As you would be aware from the dates of the above emails, the limitation period for any proceedings associated with any dispute arising from the underpayment of commission in this case is fast approaching.
In order to minimise the costs of resolving this matter, I am instructed to make the following offer of compromise, without prejudice save as to costs, that is what is commonly referred to as a Calderbank letter. If the offer below is not accepted and the matter proceeds to litigation, Ms Subasic reserves the right to disclose this letter to the court for the purposes of seeking an advantageous costs order, including if appropriate that her costs be paid on an indemnity basis.
The offer is that Hewlett-Packard pay, without offset or deduction of any kind whatsoever, the sum of $100,000 in full and final settlement of all disputes between it and Ms Subasic in relation to the underpayment of commission within 28 days of the offer being accepted in writing and that henceforth each party be barred from commencing or continuing any related proceedings.
While the terms of the offer, if accepted, will be reduced to writing in a deed of settlement with the usual terms as to confidentiality and so on, acceptance of the offer is binding on the parties once made in writing.
Noting the impending expiry of the limitation period, this offer is open for acceptance in writing until 4pm on 31 May 2016. If you wish to have this period extended please advise me in writing, I anticipate that proceedings will be filed shortly after the date mentioned, but I am willing to seek the leave of the court not to serve the originating process if genuine settlement attempts are on foot at the time.
I look forward to hearing from you soon.
Although the defendant contends otherwise, I have accepted that the pre-litigation offer was proposing a genuine and significant compromise, as the plaintiff offered to accept $100,000 in respect of a claim that she alleged exceeded $200,000. It is true that the precise high point of the claim for compensation was not specified, but the difference between the approximate amount said to be owing and the amount the plaintiff was willing to accept was significant and, along with an indication that the offer would be extended if there were genuine settlement attempts being made, clearly represented a ‘genuine attempt to reach a negotiated settlement’, rather than correspondence sent merely to trigger a costs sanction (to use the language of Santow J in Leichhardt Municipal Council v Green [2004] NSWCA 341 at [39], which I respectfully adopt).
The time for which the offer remained open was reasonable in circumstances where there was a limitation period approaching and the solicitor indicated a willingness to extend the period for which the offer remained open. It is also clear that the letter contained the requisite foreshadowing of a reliance on the correspondence in support of any future application for indemnity costs.
There are two considerations which, in my view, cause difficulty for the plaintiff in relying on the pre-litigation offer to found an application for indemnity or solicitor and client costs. The first is the lack of clarity with which the terms of the offer were expressed. The second is the lack of the offeree’s ability to assess the prospects of success as at the date of the offer.
With regard to the terms of the offer, the defendant argues that the offer was not clear and unambiguous, because it was to pay $100,000 ‘without offset or deduction’. The defendant submits that it is not clear whether those words meant that the defendant was meant to pay the $100,000 amount net of tax, in which case the offer required the defendant to have knowledge of the plaintiff’s financial position in the year of payment so as to withhold the requisite amount of tax. Another inference available from those words is that the plaintiff would accept $100,000 and she would then have the responsibility of paying any tax required to be paid on that amount, if the settlement amount was treated as additional income.
I accept there may be some force in that submission, although it would have been a matter easily clarified upon receipt of the offer and in some circumstances, the extent of a party’s willingness to engage with an offer may be relevant to the reasonableness of the position adopted. As the plaintiff argues in her reply submissions, rather than engage with the contents of the offer, the defendant simply dismissed it out of hand.
In my view, it is the second matter which is determinative in the assessment of whether it was unreasonable to reject the pre-litigation offer. The correspondence does not contain sufficient detail as to the legal and factual basis for the claim that was ultimately litigated.
Where a pre-litigation offer is made, because there are not yet any pleadings to define the issues or basis of any claim or defence, it is incumbent upon a potential claimant to provide sufficient detail for a potential defendant to be able to assess the merit of any claim, if it were to be litigated in the future.
The offeree should be left in no doubt as to the cause of action in contemplation, or at least as to the material facts founding a cause of action. If the recipient of an offer is left to guess what the basis of the claim is, it is impossible to evaluate the prospects of success, so as to be able to properly consider the compromise that is being offered.
An example can be seen in Hughes, where Mossop J awarded costs on a solicitor and client basis following a pre-litigation offer. His Honour described the contents of the offer under consideration in that case as follows (at [4]):
The letter was a detailed one reciting the positions articulated in previous correspondence, setting out the plaintiff’s view of the facts, identifying the relevant legal principles and therefore identifying the plaintiff’s claim against the defendant.
In the present case, nothing is said about what the litigation in contemplation was. From the words emphasised in the extract above, the basis of the claim is somewhat vague. It appears that Ms Subasic’s claim to commission was based on a series of unspecified representations made by managers that there would be no capping of commission, along with a representation contained in a sales plan, the contents of which were also undisclosed and not attached. The plaintiff is said to have relied on those representations in closing sales well above her target.
What was actually litigated was a technical and complex contractual dispute. An alternative case based on estoppel by representation was not made out, although it was ultimately unnecessary to deal with that aspect of the claim in detail: see Subasic at [98]-[108].
The plaintiff does not lead any evidence of a history of discussions between the parties or other relevant background leading up to this pre-litigation offer, that might have demonstrated that Hewlett-Packard was otherwise aware at the time the offer was made of the details of a claim about to be brought against it.
On the contrary, it appears that this letter was sent ‘out of the blue’ or as a first communication to the defendant of any issue the plaintiff had with historical decisions made concerning her commission. Significantly more was required than for the plaintiff to simply assert an entitlement to more than $200,000 in unpaid commission almost six years after the relevant conduct was said to have occurred. Without being told the legal or factual basis for the claim (including, for example, the content of the representations that were said to have been relied upon), Hewlett-Packard could have had no proper understanding of how the plaintiff came to the view that she was owed money, let alone what the basis was for arriving at the quantum alleged.
The plaintiff submits that the defendant was aware that it had capped the plaintiff’s commission and the precise financial extent of that cap. It is not to the point that Hewlett-Packard may have had business records in its possession supporting part of the plaintiff’s claim, and that upon investigation it might have discovered that the plaintiff’s commission had been capped. Hewlett-Packard was entitled to know why the plaintiff claimed that the capping of her commission six years ago was unlawful, before it could be said that it should have agreed to the compromise offered.
I am therefore unpersuaded that Hewlett-Packard’s rejection of the pre-litigation offer was unreasonable.
The Offer of Compromise
The Offer of Compromise was sent on 15 September 2017. It was in the following terms:
The plaintiff offers to settle the matter as follows:
1. Judgment for the plaintiff in the sum of $250,000.
2. No order as to interest.
Please not that this offer:
i) is made under Part 2.10 of the Court Procedures Rules 2006
ii) is for the whole of the proceedings;
iii) is open for acceptance until 5.00pm 16 October 2017.
Rule 1002 of the Rules provides for the making of an offer of compromise. As there is no issue that the Offer of Compromise under consideration here complied with the rule, it is unnecessary to set out the contents of that rule in detail.
The issue between the parties is the consequences that flow from the Offer of Compromise being made. That is governed in the present case by r 1010, the relevant terms of which are as follows:
Offer not accepted and judgment no less favourable to plaintiff
(1) This rule applies if an offer is made by the plaintiff in relation to a claim, but not accepted by the defendant, and the plaintiff obtains an order or judgment on the claim no less favourable to the plaintiff than the terms of the offer.
(2) Unless the court orders otherwise, the plaintiff is entitled to an order against the defendant for the plaintiff's costs in relation to the claim—
(a) if the claim is a personal injury claim…
(b) in any other case—
(i) assessed on a party and party basis up to the time when the costs are to be assessed on a solicitor and client basis under subparagraph (ii); and
(ii) assessed on a solicitor and client basis—
(A) if the offer was made before the first day of the trial—from the day the period for acceptance of the offer ends; and
(B) if the offer was made on or after the first day of the trial … .
The defendant accepts that the Offer of Compromise triggers the consequences outlined in r 1010 but says that in the present case the Court should order otherwise, as it is permitted to do, under r 1010(2).
The party seeking to displace the prima facie rule bears the onus: Shellharbour City Council v Johnson (No 2) [2006] NSWCA 114; 67 NSWLR 308 at 314 [19]; Yarra Valley Dairy Pty Ltd v Lemnos Foods Pty Ltd (No 2) [2011] FCA 283 at [8] and the authorities there-cited.
The principles applicable to when a court will otherwise order are contained in the reasons for judgment given by Mossop J in Forge v Rewers (No 2) [2017] ACTSC 273 (Forge) at [27]-[29]. Referring to cases such as Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368 at [15] and to Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391 at [45]-[47], Mossop J discussed whether exceptional circumstances were required to be established before a court will make a different order to the prima facie order for which the Rules provide. His Honour stated at [29]:
The use of an expression such as “exceptional circumstances” is thus not to be treated as an impermissible gloss on the language but rather a practical explanation of the predicament facing the offeree in the light of the obvious purpose of the Rules to encourage settlement of the proceedings and their structure in so far as they provide a default position which cannot be ignored when exercising that discretion. This was made clear by Doyle CJ in Shaw v Jarldorn [1999] SASC 529; 76 SASR 28 (Shaw) at [4]:
The power to “order otherwise” confers upon the Court an unfettered discretion. But it is a discretion which, if exercised, is exercised to displace what will otherwise be the required effect of [the relevant rule], which is that the defendant pay the whole of the plaintiff’s costs of action as between solicitor and client. In other words, it will be proper for the court to order otherwise only if, in the exercise of that wide discretion, there is good reason to order that the rule is not to have its usual effect. In considering whether there is good reason to so order, it is necessary to bear in mind the manner in which the rule operates, and the context in which it operates.
Mossop J’s reasoning has been referred to in this Court: see Oliver v Roberts (No 2) [2018] ACTCA 44 at [8]. It has also been expressly adopted more recently by Martin J in Bankier v HAP2 Pty Ltd (No 3) [2019] QSC 186 at [13] in relation to the equivalent rule in Queensland and cited by Robson J in Key Infrastructure Australia Pty Ltd v Bensons Property Group Pty Ltd (No 2) [2019] VSC 763 (Key Infrastructure) at [10] when considering the application of the equivalent rule in Victoria.
The reasoning of the South Australian Supreme Court (Full Court) decision of Shaw, on which Mossop J relied in Forge, has particular relevance to the arguments made by the defendant here. Doyle CJ stated at [6] (emphasis added):
A defendant who does not accept an offer made by a plaintiff will, of necessity, only know after judgment if the defendant was right to fight on rather than to accept the offer. But once again, the rule operates on the premise that if an offer is made by the plaintiff, the defendant will weigh up the advantages and disadvantages of not accepting the offer. In weighing up those advantages and disadvantages, the defendant must take into account the ordinary risks of litigation, including the fact that in a damages claim in particular it is usually impossible to predict with any precision the amount of damages that will be awarded. And such a defendant must also bear in mind that if matters of fact that will affect the amount of damages are in issue, a decision on those matters can go one way or the other. ...
Doyle CJ, with whom Perry J agreed at [38], went on to state at [8] (emphasis added):
... [E]vents that occur after the offer is made will be of limited weight, unless they demonstrate that the amount of the judgment that the plaintiff ultimately recovers was materially affected by subsequent events that the defendant could not reasonably have anticipated. And, in that context, I emphasise that both the defendant and the plaintiff will be assumed to anticipate the ordinary risks and vicissitudes of litigation. In deciding not to accept an offer a defendant makes the judgment that it will run the risk of the plaintiff equalling or bettering the offer, in the hope that the plaintiff will recover less than the amount of the offer. A defendant who makes that choice cannot reasonably complain if, as a result of the ordinary risks and vicissitudes of litigation, the defendant's judgment is proven to be unsound.
In a separate judgment delivered in Shaw, Perry J (with whom Doyle CJ and Mullighan J agreed) said at [36] (emphasis added):
... The circumstances which are most likely to arise and which might justify relieving a defendant from the obligation to pay solicitor and client costs, will be those where there is such a significant change in the manner in which the plaintiff's case is presented at the trial, or the manner in which the evidence emerges at the trial, that it might fairly be said that the full dimensions of the plaintiff’s entitlement could not possibly have been foreseen before the hearing commenced.
What I take from the emphasised passages above is the guidance that although the plaintiff’s success on a different case from that which was indicated at the time of the offer could be significant to a Court’s exercise of discretion whether to displace the costs consequences under the Rules, the difference must be fairly extreme before a court would find that it was something outside the ordinary inherent risks of litigation.
In Key Infrastructure at [24], the point was expressed by Robson J in this way:
The Court’s discretion to ‘otherwise order’ due to a change in circumstances or change in case after the offer is made should be exercised where the change is ‘extraordinary’ and not where the change could be considered an ‘ordinary risk inherent in litigation’.
That is also consistent with the established principle that costs consequences under the Rules are not displaced simply because the offeree acted reasonably in rejecting an offer: Port Stephens Shire Council v Tellamist Pty Ltd (No 2) [2004] NSWCA 415 at [15]–[16] per Giles JA (with whom Santow and Ipp JJA agreed).
In the present case, the defendant argues that at the time the Offer of Compromise was made, the plaintiff was relying on claims of misrepresentation and estoppel (as well as the breach of contract claim on which she succeeded). The misrepresentation claim was effectively abandoned at trial, although not done so expressly, and the estoppel claim was not made out.
The defendant argues that while there is no rule that a party is entitled to their costs in respect of an issue on which it is successful, it is a factor that can bear on the exercise of the Court’s discretion, relying on Cross v Queensland Newspapers Pty Limited (No 2) [2008] NSWCA 120 at [11]-[13].
That was a decision where no offer of compromise had been made under the relevant procedural rules in New South Wales and costs were determined in the general discretion of the Court. There are authorities to the effect that where an offer of compromise under a court’s procedural rules is engaged, the court may still apportion costs reflecting issues on which the plaintiff failed, but there would need to be a logical connection between the offer of compromise and the mixed success at trial: see, for example, State of Victoria v McIver [2005] VSCA 50; 11 VR 458 at [32].
The defendant further argues that the plaintiff substantially amended her claim after the Offer of Compromise was served. Specifically, the Further Amended Statement of Claim was not filed and served until approximately 20 December 2017, although the defendant accepts that an unsealed version of the claim was served on 21 August 2017, before the Offer of Compromise was made. Following that amendment, the final version of the claim, being the Second Further Amended Statement of Claim, was not filed until the commencement of the proceeding on 10 December 2018.
Having considered the various iterations of the plaintiff’s pleading, I am not satisfied that there was a change in the plaintiff’s case which justifies departure from the default position established under r 1010 of the Rules.
First, the issues which the defendant contends were either abandoned by the plaintiff or issues on which the plaintiff failed were not clearly severable, either in terms of the evidence that was led or the hearing time taken and arguments made. I accept that there were certain witnesses solely relevant to a misrepresentation case, but they were not so significant in terms of the overall litigation that I consider it would be unfair for the costs of dealing with those issues to form part of the overall costs of the case and to fall under the operation of r 1010.
Second, when the plaintiff’s claim as it stood before the Offer of Compromise was made is compared with the plaintiff’s claim as amended after that date, the two critical differences in the plaintiff’s case are a pleaded variation to the plaintiff’s employment contract, and further detail in support of a claim for breach of the obligations to cooperate and to act in good faith. The final version of the pleading made some minor amendments to the representation case. None of those amendments are matters that fundamentally changed the causes of action being pursued by the plaintiff.
In any event, an unsealed copy of the Further Amended Statement of Claim was served on the defendant before the Offer of Compromise was made and the Court record reveals that an application in proceeding to amend the pleading precisely in the terms set out in the Further Amended Statement of Claim had been filed in the proceedings on 23 August 2017.
As a result, the circumstances were not that there was a substantial and unforeseen change to the plaintiff’s case after the Offer of Compromise was served, with such amendments being determinative in the plaintiff’s success on the ultimate judgment. They were the opposite, in that the defendant was well aware that the plaintiff proposed to amend her claim at the time the Offer of Compromise was made, and further, of the nature of the amendments sought. The case falls squarely within what has been described as the ordinary risks of litigation that the defendant is taken to have anticipated at the time it rejected the offer.
There was an initial claim made by the plaintiff for any costs payable pursuant to r 1010 to be paid on an indemnity basis, with an alternative application for costs on a solicitor and client basis. The defendant has drawn attention to the difference between the two on any assessment of the costs, arising from r 1752 of the Rules.
As can be seen from the extract of r 1010(2)(b)(ii) set out above at [29] of these reasons, the rule provides for the Court to award costs on a solicitor and client basis. The plaintiff has not argued for a special costs order above the ordinary consequences of r 1010 and accordingly, the costs payable will be on a solicitor and client basis.
The amendments to the Plaintiff’s claim
As to the three amendments to the plaintiff’s pleading, they are governed by r 1726(2) of the Rules, which is in the following terms:
(2) A party who amends a document must pay the costs of and caused by the amendment, unless the court otherwise orders.
The rule is automatic in its operation. The Court did not order otherwise on each occasion where leave was granted to the plaintiff to amend her claim. If the defendant is now concerned that the final orders with respect to costs will reverse the effect of the above rule, I will make it clear that the costs order upon the conclusion of the proceedings does not disturb the operation of r 1726(2) of the Rules.
Conclusion
For the above reasons, it is appropriate to vary the previous costs order made, to take account of the plaintiff’s Offer of Compromise and to confirm the position with respect to the amendments to the pleadings.
In addition, the parties have requested that the Court certify for the use of counsel (senior and junior) pursuant to r 1739 of the Rules and I consider that the complexity of the submissions made on the application warrants such certification. The costs of the application to vary costs will follow the event and will be subsumed in the orders made below.
Accordingly, the orders of the Court are as follows:
(1) Order 2 of the orders made on 30 January 2020 is varied to read:
(a) The plaintiff is to pay the defendant’s costs thrown away by reason of the amendments to her Statement of Claim made on 25 October 2016, 20 December 2017 and 10 December 2018.
(b) The defendant is otherwise to pay the plaintiff’s costs, assessed on a party and party basis up to 16 October 2017, and thereafter on a solicitor and client basis.
| I certify that the preceding fifty-five [55] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam. Associate: Date: 17 July 2020 |
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