COSTS — Party/Party — exceptions to general rule that costs follow the event — appropriate case in which a special costs order should be made to reflect the plaintiff’s failure on issues of significance in terms of scope and quantum — HELD — the defendant to pay 50% of the plaintiff’s costs of the proceedings on the ordinary basis
COSTS — Party/Party — the operation of r 42.34 of the UCPR does not prevent a costs order being made in favour of the plaintiff — HELD — the commencement and continuation of the proceedings in the Supreme Court rather than the District Court was warranted
COSTS — offers of compromise — lack of evidence on which the court could evaluate the offers made — no basis on which to conclude that it was unreasonable for the plaintiff not to accept the offers seven days before the trial was to commence was a reasonable period for the plaintiff to consider whether to accept the offer
Quick Take
1Where a successful party has failed on issues of such significance in scope and quantum that they caused extravagant inflation of the claim, a special costs order reducing the proportion of recoverable costs is appropriate, assessed impressionistically by reference to the severability of the issues, the reasonableness of reliance on them, and the extent to which they increased costs and time (applying Calvo v Ellimark Pty Ltd (No 2) [2016] NSWCA 197).
2A Calderbank offer that bundles cash payments with releases from separate liabilities (such as costs orders in other proceedings) cannot ground an indemnity costs order where the offeror fails to adduce evidence enabling the court to evaluate the comparative worth of the offer against the judgment outcome.
3Under UCPR r 42.34, the relevant inquiry is whether the commencement or continuation of the proceedings in the Supreme Court was warranted, not merely whether the particular claim on which the plaintiff succeeded warranted that court; where the proceedings were transferred to the Supreme Court because of a cross-claim for equitable relief, the rule does not prevent a costs order in the plaintiff's favour.
