Smart Distribution Services Pty Ltd v General Wholesale Pty Ltd (No 3) [2010] NSWDC 108

New South Wales District Court

CITATION: Smart Distribution Services Pty Ltd v General Wholesale Pty Ltd (No 3) [2010] NSWDC 108

HEARING DATE(S): 10/6/10

JUDGMENT DATE: 23 June 2010

JURISDICTION: Civil

JUDGMENT OF: Bozic SC DCJ

DECISION: 1.The defendant pay the plaintiff's costs of proceedings up to and including 30 June 2009 on the ordinary basis as agreed or assessed; and 2.The defendant pay the plaintiff's costs of proceedings from 1 July 2009 on an indemnity basis as agreed or assessed.

CATCHWORDS: COSTS - whether offer of a sum together with "the defendant to pay the plaintiff's costs and disbursements as agreed or assessed" is an offer of compromise "exclusive of costs" pursuant to UCPR rule 20.26(2)

LEGISLATION CITED: Uniform Civil Procedure Rules 2005

Dean v Stockland Property Management Pty Ltd & Anor (No 2) [2010] NSWCA 141 CASES CITED: Mid-City Skin Cancer and Laser Centre v Zahedi-Anarak & Ors [2006] NSWSC Trustee for the Salvation Army (NSW) Property Trust & Anor v Becker & Anor (No 2) [2007] NSWCA 194

PARTIES: Smart Distribution Services Pty Ltd (plaintiff) General Wholesale Pty Ltd (defendant)

FILE NUMBER(S): 4244/08

COUNSEL: Mr N Chen (plaintiff) Mr S Bell (defendant)

SOLICITORS: ClarkeKann Lawyers (plaintiff) Dawes & Vary Lawyers (defendant)

JUDGMENT 1 The plaintiff has obtained judgment against the defendant for $181,544.88 and now seeks the following orders in relation to costs: "(i) that the defendant pay the plaintiff's costs of proceedings up to and including 30 June 2009 on the ordinary basis as agreed or assessed; and (ii) that the defendant pay the plaintiff's costs of proceedings from 30 June 2009 on an indemnity basis as agreed or assessed." 2 The plaintiff relies on an offer of compromise dated and served on 30 June 2009. The offer of compromise was in the following terms: "1. Judgment for the Plaintiff against the Defendant in the sum of $150,000 inclusive of interest. 2. The Defendant to pay the Plaintiff's costs and disbursements as agreed or assessed. 3. This offer is made pursuant to the Uniform Civil Procedure Rules 2005 Part 20 Division 4 Rule 20.26. 4. This offer is open for acceptance for 28 days from the date of this offer of compromise."