Baycorp Capital Ltd v Dex Consulting Pty Limited (No 2)

On 22 September 2014 I gave a judgment for the defendants in the principal action and ordered costs to be determined following submissions: Baycorp Limited v Dex Consulting Pty Limited [2014] NSWSC 1298. The defendants’ submissions on costs were made on 12 November 2014. Despite communications from my Chambers to the plaintiff seeking submissions, none have been forthcoming. It is evident that it does not intend to make submissions on the matter and, accordingly, it is to be determined in their absence.

The defendants relied on the affidavit of the defendants’ solicitor, Mr Hunt, annexing three offers made to the plaintiff to settle the proceedings, respectively dated 12 March 2010, 23 December 2011 and 11 February 2013, together with other correspondence seeking the agreement of the plaintiff to proposed costs orders. This was not forthcoming.

The Uniform Civil Procedure Rules 2005 (NSW) provide –

The Rules make provision for other orders where offers of compromise have been made: Division 3, Part 42. Relevant here, also, are amendments taking effect on 7 June 2013. The effect of the transitional provisions in Part 1 of Schedule 12, is that the pre-amendment version of rr 20.25-20.26 and 42.13-42.15A apply to offers made on or before 6 June 2013 and the current versions of those rules apply to offers made on or after 7 June 2013. The earlier version of rule 42.15A was as follows –

On or about 12 March 2010 the defendants conveyed an offer of compromise in the following terms –

It is not necessary to set out here r 20.26 as it then stood. It is sufficient to note that the offer complied with this rule, in particular being in writing, providing for a verdict for the defendants, with the parties to bear their own costs and contained a statement to the effect that it was made in accordance with the rule and expressed to be open for 28 days. This offer was not accepted by the plaintiff and, as is obvious, the defendants obtained a judgment more favourable to them than the terms of the offer. The defendants submit, and I agree, that r 42.15A applied so that, unless the court otherwise orders, the appropriate order is that the plaintiff must pay the defendants’ costs on an ordinary basis up to and including 12 March 2010 and on an indemnity basis from 13 March 2010. As mentioned, there is no submission from the plaintiff that, for some reason, the order sought by the defendants should not be made.

For completeness, I should mention that the defendants made a subsequent offer of compromise complying with r 20.26 of the UCPR in its amended form, expressed to be open for the period of 28 days. That offer was to settle the plaintiff’s claim by consenting to judgment for the plaintiff against the defendants in the sum of $75,000. It was not accepted. The defendants having obtained a judgment more favourable to them than the offer, r 42.15A would have required an order for costs in favour of the defendants on an ordinary basis up to and including 11 February 2013 and on an indemnity basis from 12 February 2013.

It seems to me that this matter should be determined by reference to the plaintiff’s declining to accept the offer of 12 March 2010. Accordingly, I make the following order –