Janet Harris v Sydney Local Health District (No. 2) [2014] NSWDC 41

District Court New South Wales

Medium Neutral Citation: Janet Harris v Sydney Local Health District (No. 2) [2014] NSWDC 41 Hearing dates: 16 April 2014 Decision date: 24 April 2014 Before: Mahony SC DCJ Decision: Application for special costs order dismissed. Catchwords: Offer of compromise, indemnity costs. Legislation Cited: Civil Procedure Act 2005 Cases Cited: Dean v Stockland Property Management Pty Limited & Anor (No. 2) [2010] NSWCA 141 Kooee Communications Pty Limited v Primus Telecommunications Pty Limited (No. 2) [2008] NSWCA 85 Miwa Pty Limited v Siantan Properties Pty Limited (No. 2) [2011] NSWCA 344 Nominal Defendant v Hawkins [2011] NSWCA 93 Old v McInnes and Hodgkinson [2011] NSWCA 410 Sydney Attractions Group Pty Limited v Frederick Schulman (No. 3) (2013) NSWSC 1544 Whitney v Dream Developments Pty Limited [2013] NSWCA 188 Vieira v O'Shea (No. 2) [2012] NSWCA 121 Category: Costs Parties: Janet Harris (Plaintiff) Sydney Local Health District (Defendant) Representation: H Halligan (Plaintiff) S Kettle (Defendant) Carneys Lawyers (Plaintiff) Curwoods Legal Services Pty Ltd (Defendant) File Number(s): 12/370813

Judgment ON COSTS

Introduction 1On 28 March 2014 I delivered judgment in the principal matter and made orders entering a verdict and judgment for the plaintiff against the defendant in the sum of $31,057.00. I made a further order that the defendant is to pay the plaintiff's costs of the proceedings, however, I granted the parties liberty to apply for any special costs order sought on 7 days notice. 2In 16 April 2014 the defendant sought an order that I vacate the costs order made and make an order in its favour pursuant to r 42.14 UCPR. The application was made on two bases: (1)An offer of compromise was served under cover of letter dated 18 December 2013 offering to compromise the plaintiff's claim by making a payment in the sum of $30,000 (exhibit A). (2)On the basis of an offer of compromise dated 26 February 2014 and served under cover of the letter of the same date (exhibit B). That offer was in the following terms: "The defendant offers to compromise the whole of this claim on the following terms: 1. By making a payment in the sum of $50,000. 2. This offer of compromise is made in accordance with rule 20.26 of the uniform Civil Procedure Rules 2005." 3The covering letter, which was not marked "without prejudice", contained the following: "We enclose by way of service Offer of Compromise served on behalf of the Defentant. Please note this Offer is made in accordance with Rule 20.26 of the Uniform Civil Procedure Rules 2005 and that the offer is exclusive of costs as required by the Rules. Therefore costs are payable in addition to the amount stated in the enclosed offer of compromise. Please note this offer of compromise is open for acceptance for seven (7) days."