The Leasing Centre (Aust) Pty Ltd v Rollpress Proplate Group Pty Ltd [2010] NSWSC 877

New South Wales Supreme Court

CITATION : The Leasing Centre (Aust) Pty Ltd v Rollpress Proplate Group Pty Ltd [2010] NSWSC 877

HEARING DATE(S) : 22/03/10, 23/03/10, 29/06/10 Written submissions on costs: 10/05/10, 28/05/10

JUDGMENT DATE : 6 August 2010

JURISDICTION : Equity Division

JUDGMENT OF : Barrett J

DECISION : Order that the plaintiff pay the defendants' costs of the proceedings, such costs to be assessed on the ordinary basis up to and including 18 September 2009 and on the indemnity basis after 18 September 2009.

CATCHWORDS : PROCEDURE - costs - whether unsuccessful plaintiff should be ordered to pay costs on the indemnity basis - whether costs order already made and beyond court's power to vary - held not - defendants seek to rely on offer of compromise - plaintiff says disclosure of offer is breach of contract warranting exclusion under Evidence Act, s 135(a) - held no breach of contract - plaintiff says such disclosure precluded by Civil Procedure Act, s 30(4) - held not as section applies only to court ordered mediation - plaintiff says non-acceptance of offer not unreasonable where defendants' evidence not served when offer made - but plaintiff actively rejected offer and made counter-offer despite absence of defendants' evidence - non-acceptance of defendants' offer by plaintiff unreasonable - indemnity costs ordered

Civil Procedure Act 2005, ss 14, 25, 30(4) LEGISLATION CITED : Evidence Act 1995, ss 131, 135(a) Uniform Civil Procedure Rules 2005, rule 36.16

CATEGORY : Principal judgment

Calderbank v Calderbank [1976] Fam 93 Malouf v Prince (No 2) [2010] NSWCA 51 CASES CITED : Mitchell v Tucker [2010] NSWSC 672 The Leasing Centre (Aust) Pty Ltd v Rollpress Proplate Group Pty Ltd [2010] NSWSC 282 Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 1070