Whalebone v Andrews (No 2) [2016] NSWDC 453

District Court New South Wales

Medium Neutral Citation: Whalebone v Andrews (No 2) [2016] NSWDC 453 Hearing dates: 5 August 2016 Date of orders: 05 August 2016 Decision date: 05 August 2016 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: Order that all previous cost orders be vacated and that the defendant pay the plaintiff the sum of $10,000 in respect of the costs of the proceedings. Catchwords: COSTS — party/party — general rule that costs follow the event — application of the rule and discretion – offer of compromise Legislation Cited: Uniform Civil Procedure Rules 2005, r 20.26, r 42.15, r 42.16, r 42.35 Cases Cited: Whalebone v Andrews [2016] NSWDC 149 Whitney v Dream Developments Pty Ltd (2013) 84 NSWLR 311; [2013] NSWCA 188 Category: Costs Parties: Roger Michael Whalebone (plaintiff) Derek Noel Andrews (defendant) Representation: Counsel: Mr B Quinn (plaintiff) Mr M Bennett (defendant)

Solicitors: Bamford Lawyers (plaintiff) Booth Brown Samuels & Olney (defendant) File Number(s): 2012/115617 Publication restriction: None

Judgment

INTRODUCTION 1. On 30 June 2016 I gave judgment in favour of the plaintiff, Roger Whalebone, for $117,274.50 and reserved the question of costs. [1] Mr Whalebone seeks an order that the defendant, his brother, Derek Andrews, pay the costs of the proceedings on the basis that costs should follow the event. Mr Andrews seeks an order that Mr Whalebone pay the costs up to and including 7 August 2015 and, because of an offer of compromise dated 3 September 2015, that Mr Whalebone pay the costs on an indemnity basis from 4 September 2015. The submission did not refer to the costs in the period from 8 August 2015 to 3 September 2015. 2. Mr Andrews put an alternative submission in the event that the offer of compromise is not effective: that he pay Mr Whalebone the costs from 8 August 2015 and would, in that event, not speak against an order that there be no order as to costs on the basis that the costs prior to 2015 are approximately equal to or might marginally outweigh those costs from August 2015. Such an order would avoid the need for an assessment.