Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No. 2)

[2008] NSWCA 85

NSW Court of Appeal

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Interrogate

Catchwords

1. Costs
2. › Offers of compromise
3. › Validity of offer
4. › Whether offer left open for reasonable time
5. › Offer made less than 24 hours before trial
6. › Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.15
1. Costs
2. › Offers of compromise
3. › Indemnity costs
4. › Consequence of non-acceptance of offer of compromise
5. › Whether indemnity costs available where offer not compliant with rules
6. › Uniform Civil Procedure Rules 2005 (NSW), rr 42.14, 42.15
1. Costs
2. › Proportionate costs
3. › Mixed success of parties
4. › Adjustment of proportionate costs order following appeal
1. Costs
2. › Costs of appeal
3. › Effect of pre-trial offer of compromise on costs of appeal
4. › Whether offer continues to have costs consequences on appeal

Quick Take

An offer of compromise made less than 24 hours before trial, requiring acceptance within that period, is unlikely to satisfy the requirement under UCPR r 20.26(7)(b) that the offer be left open for a reasonable time, particularly in complex commercial litigation. The reasonableness of the time allowed must be assessed objectively from the perspective of both parties, and the court should not be ungenerous to the offeree in making this assessment. The question of whether pre-trial offers of compromise engage indemnity costs rules on appeal was left open by the majority.