Lumina BPO Pty Limited v ELB Pty Ltd (No 3) [2020] NSWDC 713

District Court New South Wales

Medium Neutral Citation: Lumina BPO Pty Limited v ELB Pty Ltd (No 3) [2020] NSWDC 713 Hearing dates: 1 September 2020 Date of orders: 1 September 2020 Decision date: 01 September 2020 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: Defendant pay the plaintiff's costs: (a) on the ordinary basis up to and including 20 December 2019; and (b) on the indemnity basis from 21 December 2019. Catchwords: COSTS – indemnity costs – offer of compromise Legislation Cited: Uniform Civil Procedure Rules 2005, r 20.26, r 42.1 Cases Cited: Hurford Hardwood Kempsey Pty Ltd v Kempsey Timbers (Sawmilling) Pty Ltd (No 2) [2019] NSWSC 1248 Jojeni Investments Pty Ltd v Mosman Municipal Council (No 2) [2015] NSWCA 208 Lumina BPO Pty Limited v ELB Pty Ltd (No 2) [2020] NSWDC 712 Category: Costs Parties: Lumina BPO Pty Limited (plaintiff) ELB Pty Ltd (defendant) Representation: Counsel: Mr D Neggo (plaintiff)

Solicitors: Watson Mangioni Lawyers Pty Ltd (plaintiff) John de Mestre & Co Solicitors Pty Ltd (defendant) File Number(s): 2019/228108 Publication restriction: None

Judgment 1. After obtaining judgment, [1] the plaintiff makes an application for a special costs order. 2. The plaintiff seeks an order that its costs be paid on an indemnity basis from 21 December 2019. The application is founded on an offer of compromise dated 20 December 2019. The defendant did not dispute the entitlement of the plaintiff to its costs on the ordinary basis under r 42.1 of the Uniform Civil Procedure Rules 2005. 3. The offer was in the following terms: "The Plaintiff offers to compromise the whole of its claim against the Defendant on the following terms: 1. Judgment for the Plaintiff against the Defendant in the sum of $110,000. 2. No order as to costs, such that each party bears their own costs. 3. This offer of compromise is made in accordance with rule 20.26 of the Uniform Civil Procedure Rules 2005 (NSW). 4. This offer of compromise is open for acceptance for a period of 28 days from the date of this offer." 1. The judgment was more favourable to the plaintiff than that proposed in the offer of compromise. 2. An issue arose as to whether the reference to costs in the offer took it outside r 20.26. The plaintiff referred to the decision of Hurford Hardwood Kempsey Pty Ltd v Kempsey Timbers (Sawmilling) Pty Ltd (No 2), [2] where his Honour Stevenson J referred in [16] to Jojeni Investments Pty Ltd v Mosman Municipal Council (No 2) [3] at [12], where the Court of Appeal determined that: "…there is no difference between an offer containing a term that each party bear its own costs, and an offer which is silent as to costs. Such an offer does not contravene r 20.26(2)(c)." And Stevenson J concluded that "the same must apply to an offer that proposes that there be 'no order as to costs'". [4] 1. This principle must also apply to an offer that includes an order "No order as to costs, such that each party bears their own costs". That term of the offer does not contravene UCPR 20.26(2)(c), that an offer "must not include an amount for costs and must not be expressed to be inclusive of costs". 2. There is no other reason why the discretion to award indemnity costs from the date of the offer was not enlivened; no matters of discretion were put to me against making the order sought. Indeed, the defendant expressly elected not to put any submissions about the matter of discretion. 3. I propose to make the order sought. Order 2 of the judgment today will therefore be that the defendant pay the plaintiff's costs: 1. on the ordinary basis up to and including 20 December 2019; and 2. on the indemnity basis from 21 December 2019.