Milich v The Council of the City of Canterbury (No. 3) [2012] NSWSC 1280

Supreme Court New South Wales

Medium Neutral Citation: Milich v The Council of the City of Canterbury (No. 3) [2012] NSWSC 1280 Hearing dates: 24 October 2012 Decision date: 31 October 2012 Jurisdiction: Common Law Before: Davies J Decision: 1. Judgment for the Plaintiff against the First Defendant in the sum of $232,315 80. 2. The First Defendant pay the Plaintiff's costs on a party/party basis as agreed or assessed. 3. Judgment for the Second Defendant. 4. The Plaintiff pay the Second Defendant's costs as agreed or assessed in accordance with the Workers Compensation Regulation 2010. 5. Judgment for the Second Defendant on the Cross-claim in the sum of $124,697.26 comprising payments made pursuant to the Workers Compensation Act 1987 in the sum of $89,744 26 and pre-judgment interest in the amount of $34,953. 6. The First Defendant to pay the Second Defendant's costs of the Cross-claim on a party/party basis as agreed or assessed. Catchwords: PROCEDURE - costs - offer of compromise by Defendant - offer not accepted by Plaintiff - whether Plaintiff obtained a judgment not less favourable than the offer - offer made without deduction for workers compensation indemnity - need to take indemnity into account - meaning of "less favourable" in r 42.15 UCPR - regard to be had to Plaintiff's net position - indemnity costs not ordered - judgment less than $500,000 - whether commencement and continuation of the proceedings in the Supreme Court was warranted pursuant to r 42.34 Legislation Cited: Uniform Civil Procedure Rules Workers Compensation Act 1987 Workers Compensation Regulation 2010 Cases Cited: Egan v Mangarelli [2012] NSWSC 1226 Hancock v Arnold (No. 2) [2009] NSWCA 19 In the matter of Cheal Industries Pty Limited [2012] NSWSC 932 JKB Holdings Pty Ltd v de la Vega (No 5) [2012] NSWSC 1238 Milich v The Council of the City of Canterbury [2012] NSWSC 59 Milich v The Council of the City of Canterbury (No. 2) [2012] NSWSC 450 Rail Corporation NSW v Vero Insurance Ltd (No 2) [2012] NSWSC 926 Vieira v O'Shea (No 2) [2012] NSWCA 121 Ziliotto v Dr Hakim (No 2) [2012] NSWSC 1079 Category: Costs Parties: Branislav (Bill) Milich (Plaintiff) The Council of the City of Canterbury (First Defendant) Ready Workforce Pty Ltd (Second Defendant) Representation: C Barry QC and M Boulton (Plaintiff) R Sheldon SC (First Defendant) P O'Connor (Second Defendant) Watkins Tapsell (Plaintiff) DLA Phillips Fox (First Defendant) Holman Webb Lawyers (Second Defendant) File Number(s): 2008/315064