Chen v State of New South Wales (Costs) [2012] NSWDC 187

District Court New South Wales

Medium Neutral Citation: Chen v State of New South Wales (Costs) [2012] NSWDC 187 Hearing dates: On the papers Decision date: 10 October 2012 Jurisdiction: Civil Before: Judge Peter Johnstone Decision: Defendant's application for indemnity costs dismissed with costs Catchwords: COSTS - indemnity costs - where offers of compromise not accepted by plaintiffs and judgment more favourable to defendant - whether period left open for acceptance of offers was reasonable Legislation Cited: Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005 (UCPR) Cases Cited: Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No 2) [2008] NSWCA 85 Morgan v Johnson (1998) NSWLR 578 Pittorino v Yates [2009] NSWCA 87 Category: Costs Parties: Irene Rui Chen (1st Plaintiff) Gong Xiang Xuan (2nd Plaintiff) State of New South Wales (Defendant) Representation: Mr C Evatt with Ms L Evans (Plaintiffs) Mr M Spartalis (Defendant) Friend & Co Lawyers (Plaintiffs) Makinson & d'Apice Lawyers (Defendant) File Number(s): 2011/54439 Publication restriction: None

REASONS FOR Judgment 1The defendant has applied for an award of indemnity costs against each plaintiff from the day following offers of compromise made by it to the plaintiffs but not accepted by them, where the judgment was more favourable to defendant than the offers. 2The plaintiffs in these proceedings are Ms Irene Chen and her mother, Ms Gong Xuan. They brought these proceedings alleging wrongful arrest, false imprisonment, assault and malicious prosecution by two police officers. The defendant opposed the plaintiffs' claims for damages. 3The dispute proceeded to trial on 16, 17, 18, 19, 20, 23, 24, 26, and 27 April 2012. Written submissions were subsequently provided and judgment was reserved on 18 June 2012. A written judgment was delivered on 17 August 2012. The Court directed the entry of judgment in favour of the defendant against each plaintiff. The plaintiffs were ordered to pay the defendant's costs on the ordinary basis, but leave was given for an application to be made for a differential order for costs. 4The defendant applied for a differential order on the basis that offers of compromise were served in which the defendant offered to compromise the proceedings. The defendant offered to compromise the first plaintiff's claim by making a payment of $50,000, exclusive of costs. The defendant offered to compromise the second plaintiff's claim by making a payment of $30,000, exclusive of costs. 5The judgment obtained by the defendant was clearly more favourable to defendant than the offers. In the ordinary course, unless the Court were to order otherwise, the defendant would be entitled to an orders for costs against the plaintiffs to be assessed on an ordinary basis up until the day the day the offer was made, and on an indemnity basis from the beginning of the following day: UCPR r 42.15A(2)(b)(i). 6The plaintiffs do not ask the Court to otherwise order. What they submit is that UCPR r 42.15A(2)(b)(i) has no operation, because the offers of compromise were not left open for acceptance for such time as was reasonable in the circumstances as required by UCPR r 20.26(7)(b). That rule provides: "(7) The following provisions apply if an offer is limited as to the time it is open for acceptance: (a) the closing date for acceptance of the offer must not be less than 28 days after the date on which the offer is made, in the case of an offer made 2 months or more before the date set down for commencement of the trial, (b) the offer must be left open for such time as is reasonable in the circumstances, in the case of an offer made less than 2 months before the date set down for commencement of the trial."