The Court held that the defendant failed to displace the prima facie indemnity costs order under UCPR r 360(2) despite three arguments: that significant expert evidence was served after the offer date, that the plaintiff became unavailable for cross-examination due to illness on the morning of trial (with his affidavit admitted under s 92 Evidence Act 1977), and that the judgment only exceeded the offer by 11%. On the facts, the changing life expectancy evidence was not so significant that the defendant could not reasonably have accounted for the uncertainty, the risk of a terminally ill plaintiff becoming unfit was a matter of common experience the defendant should have anticipated, and beating an offer by $111,200 was not 'marginal' in any meaningful sense. The Court confirmed that the mere reasonableness of rejecting an offer does not displace the rule.
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