Lee Rumble & Anor v Liverpool Plains Shire Council & Ors [No. 2] [2012] NSWDC 99

District Court New South Wales

Medium Neutral Citation: Lee Rumble & Anor v Liverpool Plains Shire Council & Ors [No. 2] [2012] NSWDC 99 Hearing dates: 22 May 2012, 23 May 2012, 24 May 2012, 25 May 2012, 28 Mary 2012 and 13 July 2012 Decision date: 20 July 2012 Before: Mahony SC DCJ Decision: See paragraph 14 of Judgment Catchwords: Costs following Calderbank Offer Legislation Cited: Civil Procedure Act 2005 Cases Cited: Calderbank v Calderbank ]1975] 3 All ER 333 Vieira v O'Shea (No. 2) [2012] NSWCA 121 Miwa Pty Ltd v Siantan Properties Pty Ltd (No. 2) ]2011] NSWCA 344 Category: Costs Parties: Lee Rumble - First Plaintiff Robert Rumble - Second Plaintiff Liverpool Plains Shire Council - First Defendant Mervyn John Prendergast - Second Defendant Matthew Sproul - Third Defendant Christine Anderson - Fourth Defendant Simon Carroll - Fifth Defendant Paul Fahey - Seventh Defendant Chris Byers - Eighth Defendant Darren Clark - Ninth Defendant Representation: S Galitsky - Plaintiff J Guihot - First to Fifth and Seventh to Ninth Defendants Websters Solicitors - Plaintiffs Moray & Agnew - First to Fifth and Seventh to Ninth Defendants File Number(s): 11/58125 Publication restriction: Nil

Judgment ON COSTS 1The defendants, by notice of motion filed with leave on 13 July 2012, seek the following orders: (1)An order that the costs orders made on 5 July 2012 in favour of the plaintiffs against the first defendant be revoked. (2)That in lieu thereof the Court order that: (a)The plaintiffs pay the First Defendant's costs of the proceedings; (b)Alternatively, that there be no order as to costs up to 16 May 2012; or (c)Alternatively, (i)The First Defendant pay the costs of the plaintiffs on an ordinary basis up to 16 May 2012 (ii)Each plaintiff to pay the costs of the First Defendant on and from 17 May 2012, (iii)That such costs be paid by the plaintiffs on an indemnity basis. (d)Each plaintiff to pay the First Defendant's costs of this motion. (e)That the First Defendant's costs of the motion be paid by the plaintiffs on an indemnity basis. (3)An order that enforcement of the judgment in favour of each plaintiff against the First Defendant be stayed pending an assessment of the First Defendant's costs payable under Order 2 and that any such costs be set off against the said judgments in favour of the plaintiffs. (4)Such further or other orders so as to give effect to the orders sought herein. 2The defendants relied on an affidavit of Mark James Brothers sworn 11 July 2012 which annexed correspondence between the parties. Relevantly, it included a letter from the defendants' solicitors to the plaintiffs' solicitors dated 30 April 2012, which contained the following: "We are instructed to make one final offer to settle these proceedings The offer is our clients' highest position and no further offers will be made. The offer is as follows: 1. In full settlement of: 1.1 all claims by the plaintiffs against the first, second, third, fourth, fifth, seventh, eighth and ninth defendants; and 1.2 the cross claim by the first defendant against the plaintiffs these defendants will pay the sum of $180,000.00 ("the settlement sum") comprising: 1.3 the sum of $147,238.91 to be paid as directed by you; and 1.4 a sum of $32,761.09 to be retained by the first defendant and be applied to all outstanding rates and charges owed to the first defendant by the plaintiffs up until 30 June 2012, and all interest arrears up until 20 April 2012. Plus costs as agreed or assessed. For the avoidance of any doubt, your clients will receive the sum of $147,238.91 plus costs as agreed and assessed and all rates, charges and interest due to the first defendant by the plaintiffs until 30 June 2012 shall be forgiven. This offer remains open for acceptance until 5.00pm on Wednesday 16 May 2012 whereupon it will be deemed withdrawn and the defendants will embark on preparing the matter for hearing. This offer is made in accordance with the principles referred to in Calderbank v Calderbank [1975] 3 All ER 333 and should the offer not be accepted this letter will be relied upon on the question of costs." 3The offer set out in that letter is more favourable to the plaintiffs than the judgment obtained by them on 5 July 2012. 4The plaintiffs relied on an affidavit of Stephen Roy Webster sworn on 12 July 2012. That affidavit deposed to matters that occurred pre-trial between the parties and in particular to a proposed resolution of the dispute between the parties negotiated between Mr Webster and Messrs Everingham Solomons, the solicitors who previously had advised the defendants. Apparently a resolution had been negotiated to the stage where a deed of release was prepared and forwarded to the plaintiffs for their consideration. 5The defendants relied on a further affidavit in reply from Mark James Brothers sworn on 12 July 2012. That affidavit deposed to the circumstances in which the first defendant had negotiated the pre-trial resolution, that the plaintiff had been advised that a council officer responsible for those negotiations had no authority to enter into a binding agreement on the part of council and that at a meeting of council the council had rejected the negotiated terms and had resolved to seek further legal advice in relation to the matter. 6Thereafter, the plaintiffs commenced these proceedings.