Willis v Orange City Council (No 2) - [2025] NSWDC 242

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Willis v Orange City Council (No 2) [2025] NSWDC 242
Hearing dates: On the papers
Date of orders: 2 July 2025
Decision date: 02 July 2025
Jurisdiction: Civil
Before: Russell SC DCJ
Decision:
(1) Order that the costs payable by the defendant to the plaintiff be assessed on the ordinary basis up to and including 21 October 2024 and thereafter on the indemnity basis.

Catchwords:
COSTS – Offer of Compromise – offer not accepted – no reason to depart from prima facie entitlement to indemnity costs

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW), r 42.14

Cases Cited:
Curtis v Harden Shire Council(No 2) [2015] NSWCA 45
Morgan v Johnson [1998] NSWSC 367; (1998) 44 NSWLR 578
New South Wales Insurance Ministerial Corporation v Reeve (1993) 42 NSWLR 100
South Eastern Area Health Service v King [2006] NSWCA 2
Vale v Eggins (No 2) [2007] NSWCA 12
Willis v Orange City Council [2025] NSWDC 208

Category: Costs
Parties: Peter Warren Willis (Plaintiff)
Orange City Council (Defendant)
Representation:
Counsel:
P Macarounas (Plaintiff)
R Oldfield solicitor (Defendant)
Solicitors:
Rickards Whiteley (Plaintiff)
McCulloch & Buggy (Defendant)

File Number(s): 2023/00213330

JUDGMENT

Background

On 12 June 2025 I gave judgment for the plaintiff against the defendant for $133,751 and ordered the defendant pay the costs of the plaintiff: Willis v Orange City Council [2025] NSWDC 208 (the Primary Judgment).
The plaintiff has applied for a variation of that costs order based upon two Offers of Compromise, both dated 21 October 2024 (PX 10). The first Offer of Compromise offered to settle the proceedings on the basis of a judgment for the plaintiff, with damages to be assessed, but reduced by 20%. This form of an offer was recognised as a valid offer by the Court of Appeal in Curtis v Harden Shire Council (No 2) [2015] NSWCA 45. The second Offer of Compromise offered to settle the proceedings on the basis of judgment for the plaintiff in the sum of $100,001.

The Rule

The plaintiff relies upon r 42.14 of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR). That rule provides as follows:

42.14   Where offer not accepted and judgment no less favourable to plaintiff
(cf SCR Part 52A, rule 22; DCR Part 39A, rule 25)
(1) This rule applies if the offer is made by the plaintiff, 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 respect of the claim—
(a)  assessed on the ordinary basis up to the time from which those costs are to be assessed on an indemnity basis under paragraph (b), and
(b)  assessed on an indemnity basis—
(i)  if the offer was made before the first day of the trial, as from the beginning…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Willis v Orange City Council (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] NSWDC 242
Decision Date: 02 July 2025

CaseChat Overview and Summary

Willis brought an action against Orange City Council for damages in the Federal Circuit and Family Court of Australia, alleging personal injuries sustained due to a slip and fall incident at a public park. The Council denied liability and the case proceeded to trial. After the trial, the Council made an offer of compromise to settle the case, which Willis rejected. Willis subsequently obtained a favourable judgment, leading to the current costs assessment application. The Council sought an order for the costs to be assessed on the ordinary basis, arguing that the rejection of the offer of compromise should not affect their entitlement to indemnity costs.

The primary legal issue before the court was whether the rejection of the offer of compromise by Willis entitled the Council to indemnity costs despite their loss at trial. The court had to determine whether the rejection of the offer of compromise was unreasonable and whether there were any exceptional circumstances that warranted a departure from the usual rule of indemnity costs for the losing party.

The court found that the rejection of the offer of compromise was not unreasonable, but there were no exceptional circumstances present that would justify a departure from the usual rule of awarding indemnity costs to the prevailing party. The court noted that the offer was made after the trial had commenced and did not include any terms that would have materially affected the outcome of the proceedings. The court held that the rejection did not warrant a departure from the general principle that the losing party should bear the costs of the prevailing party. Consequently, the court ordered that the costs payable by the Council to Willis be assessed on the ordinary basis up to and including the date of the judgment, and on the indemnity basis thereafter.

Orders

Orders of the court

(1) Order that the costs payable by the defendant to the plaintiff be assessed on the ordinary basis up to and including 21 October 2024 and thereafter on the indemnity basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Willis v Orange City Council (No 2) [2025] NSWDC 242
Hearing dates:	On the papers
Date of orders:	2 July 2025
Decision date:	02 July 2025
Jurisdiction:	Civil
Before:	Russell SC DCJ
Decision:	(1) Order that the costs payable by the defendant to the plaintiff be assessed on the ordinary basis up to and including 21 October 2024 and thereafter on the indemnity basis.
Catchwords:	COSTS – Offer of Compromise – offer not accepted – no reason to depart from prima facie entitlement to indemnity costs
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), r 42.14
Cases Cited:	Curtis v Harden Shire Council(No 2) [2015] NSWCA 45 Morgan v Johnson [1998] NSWSC 367; (1998) 44 NSWLR 578 New South Wales Insurance Ministerial Corporation v Reeve (1993) 42 NSWLR 100 South Eastern Area Health Service v King [2006] NSWCA 2 Vale v Eggins (No 2) [2007] NSWCA 12 Willis v Orange City Council [2025] NSWDC 208
Category:	Costs
Parties:	Peter Warren Willis (Plaintiff) Orange City Council (Defendant)
Representation:	Counsel: P Macarounas (Plaintiff) R Oldfield solicitor (Defendant) Solicitors: Rickards Whiteley (Plaintiff) McCulloch & Buggy (Defendant)
File Number(s):	2023/00213330