National Assessing & Quoting Pty Ltd v Pacific Automotive Holdings Pty Ltd (No. 2) [2021] NSWDC 284

District Court New South Wales

Medium Neutral Citation: National Assessing & Quoting Pty Ltd v Pacific Automotive Holdings Pty Ltd (No. 2) [2021] NSWDC 284 Hearing dates: On the papers Date of orders: 29 June 2021 Decision date: 29 June 2021 Jurisdiction: Civil Before: Russell SC DCJ Decision: (1) Order the defendant to pay the plaintiff's costs on the ordinary basis up to and including 14 October 2020 and thereafter on an indemnity basis. Catchwords: COSTS – offer of compromise Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 42.14 Cases Cited: National Assessing & Quoting Pty Ltd v Pacific Automotive Holdings Pty Ltd [2021] NSWDC 227 Category: Costs Parties: National Assessing & Quoting Pty Ltd (Plaintiff) Pacific Automotive Holdings Pty Ltd (Defendant) Representation: Counsel: M Castle (Plaintiff) J Raftery (Defendant)

Solicitors: Adelsteins Solicitors (Plaintiff) VMC Legal Pty Ltd (Defendant) File Number(s): 2019/201239

Judgment 1. On 4 June 2021 I gave judgment for the plaintiff against the defendant for $209,535.36: National Assessing & Quoting Pty Ltd v Pacific Automotive Holdings Pty Ltd [2021] NSWDC 227. I ordered the defendant to pay the plaintiff's costs. 2. The plaintiff seeks an order for indemnity costs after 14 October 2020 based upon an Offer of Compromise. 3. The parties have agreed that this application could be dealt with on the papers. The solicitor for the defendant indicated that the defendant neither objected to nor opposed the orders sought by the solicitor for the plaintiff. 4. The plaintiff filed an affidavit dated 16 June 2021 sworn by its solicitor Mr Adelstein. An Offer of Compromise dated 14 October 2020 was annexed to the affidavit. By that Offer the plaintiff offered to compromise the proceedings on the basis that the defendant pay to the plaintiff the sum of $107,500. 5. Rule 42.14 of the Uniform Civil Procedure Rules 2005 (NSW) applies where an offer is made by a plaintiff and is not accepted by the defendant, and the plaintiff obtains a judgment on the claim no less favourable to the plaintiff than the terms of the offer. In the present case the plaintiff has clearly obtained a judgment no less favourable than the terms of the offer. 6. Rule 42.14(2) provides that unless the court otherwise orders, the plaintiff is entitled to an order against the defendant for costs assessed on the ordinary basis until the date of the Offer of Compromise and thereafter on an indemnity basis. 7. No submissions have been put for the defendant and there is no reason why the court should order "otherwise".