JKB Holdings Pty Ltd v de la Vega (No 5) [2012] NSWSC 1238

Supreme Court New South Wales

Medium Neutral Citation: JKB Holdings Pty Ltd v de la Vega (No 5) [2012] NSWSC 1238 Hearing dates: 28 September 2012 Decision date: 28 September 2012 Jurisdiction: Equity Division Before: Rein J Decision: 1. Direct that the amount of $712,003 be paid out by the Registry to the first and third plaintiffs on Wednesday 3 October 2012 on the basis that $262,003 of this is to be paid into a controlled money account. 2. The plaintiffs' costs are not to include the costs of the third plaintiff's affidavit, nor half the costs of the second plaintiff's affidavit of 18 September 2011. 3. The plaintiffs to pay the costs of the defendants in responding to the third plaintiff's affidavit and the paragraphs of the second plaintiff's affidavit which were not read, which costs are to be offset against the costs otherwise payable to the plaintiffs. Catchwords: PROCEDURE - costs - offers of compromise under the UCPR - where offer contains term that defendants are to pay the plaintiffs' costs of proceedings as agreed or assessed - offer not exclusive of costs and therefore inconsistent with the UCPR

PROCEDURE - costs - offer of compromise under the UCPR - where offer did not state that it would be relied on for indemnity costs - where offer not capable of acceptance in absence of formal deed - offer not in accordance with the UCPR and cannot be relied on for indemnity costs

PROCEDURE - costs - Calderbank offers - where offer is not expressed to be Calderbank - where basis of calculation of offer not explained - where offer only open for seven days - offer cannot be relied on as Calderbank offer and in any event not established that it was unreasonable not to accept the offer