Wittenberg v Gillis

Wittenberg commenced proceedings against Gillis in the Supreme Court, seeking damages for personal injuries. Gillis made an offer to compromise the matter by way of a letter dated 27 August 2019, proposing to settle the matter for $50,000. Wittenberg rejected this offer and proceeded to trial. Gillis was successful on the merits of the claim, and subsequently applied for an order for indemnity costs. Wittenberg opposed the application, arguing that the offer to compromise did not comply with the requirements of rule 42.15A of the Uniform Civil Procedure Rules 2005 (NSW). The court was required to determine whether Gillis's offer to compromise complied with rule 42.15A, and if it did, whether the order for indemnity costs should be granted.

The court found that the offer to compromise complied with the requirements of rule 42.15A. The offer was in writing, and included details of the proposed settlement amount and the date of the offer. The court found that the offer was genuine, and that Gillis had acted reasonably in making the offer. The court also found that Wittenberg had not acted reasonably in rejecting the offer, and that Gillis was entitled to indemnity costs. The court noted that indemnity costs were an exceptional remedy, and that they should only be awarded in cases where the conduct of the losing party was egregious. However, the court found that Wittenberg's conduct in rejecting the offer to compromise was egregious, and that indemnity costs were appropriate in this case.

Wittenberg v Gillis is a reminder to litigants that offers to compromise can have significant consequences. The court found that Gillis's offer to compromise complied with the requirements of rule 42.15A, and that Wittenberg's rejection of the offer was egregious. As a result, Gillis was entitled to indemnity costs. Litigants should carefully consider any offers to compromise, and should not reject them without good reason. Failure to do so may result in an order for indemnity costs. The court made an order that Gillis recover from Wittenberg the costs of and incidental to the offer to compromise, together with interest, and that those costs be paid on an indemnity basis.