Council of the City of Canterbury v Milich

[2013] NSWCA 215

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Costs
3. › Offer of compromise
4. › Compliance with rules
5. › Whether offer including term to pay plaintiff's costs complied with requirement that offer be 'exclusive of costs'
6. › Uniform Civil Procedure Rules 2005 (NSW), r 20.26(2)
1. Practice and Procedure
2. › Costs
3. › Indemnity costs
4. › Offer of compromise
5. › Whether judgment more favourable than offer
6. › Comparison of offer amount with judgment amount
7. › Whether workers' compensation repayments to be taken into account
8. › Uniform Civil Procedure Rules 2005 (NSW), r 42.15
1. Practice and Procedure
2. › Precedent
3. › Intermediate appellate court
4. › Whether leave should be granted to reopen recent five-judge bench decision
5. › Desirability of certainty
6. › Whether compelling reason to depart from earlier decision
7. › Retrospective effect of rule amendment

Quick Take

An offer of compromise under UCPR r 20.26 (as in force before 7 June 2013) that included a term to pay the plaintiff's costs did not comply with the requirement that the offer be 'exclusive of costs', following Whitney. The rule has since been amended to require only that the offer 'must not include an amount for costs and must not be expressed to be inclusive of costs'. The Court articulated factors relevant to reopening a recent five-judge bench decision, holding that the desirability of certainty, the diminishing retrospective effect of the decision, and the fact that reasonable minds differed on the construction weighed against reopening.