Richtoll Pty Ltd v WW Lawyers (in Liquidation) Pty Ltd (No 2)

HOEBEN CJ at CL:

At the time judgment was handed down, directions were made that any submissions in respect of a special costs order should be made in writing within seven days. On 21 April 2016 submissions were received from the defendant seeking such a special costs order. By email dated 27 April 2016 the plaintiffs advised that they did not wish to make submissions in response to those sent to the Court by the defendant.

This judgment relates to the defendant’s application for a special costs order.

The defendant seeks a variation of the costs order in the judgment as follows:

In support of that application, the defendant relies upon an offer of compromise made by it, dated 2 September 2015. The defendant also relies upon a written offer, dated 31 August 2015. Neither offer was accepted. In the absence of any submissions by the plaintiffs, I have proceeded on the basis that the plaintiffs’ solicitors received those offers.

The offer of compromise was in the following terms:

Rule 20.26 of the Uniform Civil Procedure Rules (UCPR) relevantly provides:

The defendant’s offer of compromise complied with UCPR Rule 20.26. The Rules dictate that as the defendant had obtained an order or judgment on the claim no less favourable to it than the terms of the offer, the plaintiffs should pay the defendant’s costs on an indemnity basis from the day after the offer was made unless the Court otherwise orders (UCPR Rule 42.15A).

In the absence of any submissions from the plaintiffs and because nothing occurred in the conduct of the trial which would require that the Court “order otherwise”, there is no reason why the Court would “order otherwise”. In those circumstances, the defendant is entitled to the variation of the costs order which it seeks.