COSTS — application by plaintiff for costs where defendant has surrendered or capitulated without a determination on the merits — general principles with respect to costs — application for indemnity costs based on offer of compromise under UCPR r 20.26 and Calderbank offer — application for indemnity costs based on unreasonable conduct — HELD — indemnity costs awarded
COSTS — application for gross sum costs order — lack of justification for gross sum costs order — HELD — gross sum costs order refused
Quick Take
1Where a defendant, after litigating for some time, effectively surrenders by consenting to the very relief claimed (here specific performance), that capitulation justifies a costs order against it without any finding of unreasonableness. The court will not use the costs application to hypothetically assess whether the abandoned defence was hopeless.
2A plaintiff's UCPR r 20.26 offer to accept specific performance at a price above the contract price is triggered under r 42.14 where the plaintiff later obtains consent orders for specific performance at the original contract price. Those orders are no less favourable than the offer, so indemnity costs run from the day after the offer, notwithstanding that there was no hearing on the merits.
3A gross sum costs order under s 98(4)(c) of the Civil Procedure Act 2005 (NSW) is not warranted merely because the costs can be quantified. On the facts, the proceedings were short and uncomplicated with few interlocutory steps. There was no claimed disproportion, no evidence of the paying party's impecuniosity and no indication that an assessment would be protracted or burdensome.
