Supreme Court New South Wales Medium Neutral Citation: Parker v City of Bankstown RSL Community Club Ltd (No. 2) [2014] NSWSC 921 Hearing dates: Written submissions Decision date: 10 July 2014 Jurisdiction: Common Law Before: Adamson J Decision: (1) The plaintiff is to pay the first defendant's costs of the proceedings on the ordinary basis up to and including 19 May 2014 and on an indemnity basis thereafter. (2) The plaintiff is to pay the second and third defendants' costs of the proceedings on the ordinary basis up to and including 11 April 2014 and on an indemnity basis thereafter. Catchwords: COSTS - Calderbank offers - plaintiff had no reasonable appreciation of the strength of the first defendant's defence when the first offer was made but was in a good position to assess her prospects of success with the second offer - unreasonable of plaintiff not to accept first defendant's second offer - plaintiff's failure to accept the second and third defendants' offer required the defendants to expend further sums to defend the proceedings - second and third defendants entitled to costs on a higher basis from day after offer was made Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 20.26, r 42.15A Cases Cited: Calderbank v Calderbank [1975] 3 All ER 333 Category: Costs Parties: Kathleene Parker (Plaintiff) City of Bankstown RSL Community Club Limited (1st Defendant) Glenda Yee (2nd Defendant) Dennis Reginald Yee (3rd Defendant) Representation: Counsel: M Daley (Plaintiff) R Cavanagh SC (1st Defendant) M White SC/ B Kaplan (2nd & 3rd Defendant) Solicitors: Brydens Compensation Lawyers (Plaintiff) Thompson Cooper Lawyers (1st Defendant) Colin Biggers & Paisley (2nd & 3rd Defendants) File Number(s): 2010/109965 Publication restriction: Nil Judgment 1On 11 June 2014 I published reasons for judgment together with orders that included an order that there be judgment for the defendants. The defendants have applied for costs orders on an indemnity basis as a result of offers made which, had they been accepted, would have given the plaintiff a better result than is reflected in my orders. 2The defendants' applications have been dealt with on the basis of written submissions. The plaintiff, by her counsel, Mr Daley has indicated that she does not propose to make any submissions regarding these applications. 3These reasons ought be read with my principal judgment: Parker v Bankstown RSL Club Limited [2014] NSWSC 772. Application by the Club 4By letters dated 22 June 2010 and 19 May 2014, the Club made Calderbank offers (named after Calderbank v Calderbank [1975] 3 All ER 333) to the plaintiff on the basis of a judgment in its favour with no order as to costs. 5The second of the two letters involved a greater degree of compromise than the first since significantly greater costs would have been expended by 19 May 2014, a week before the first day of the hearing, than by 22 June 2010. 6When the first offer was made, the proceedings had only been on foot for a short time, the statement of claim having been filed initially in the District Court on 4 May 2010. The proceedings were transferred to this Court in 2011. As at the date of the offer, the plaintiff could have had no reasonable appreciation of the strength of the Club's defence. The measure of compromise in the first offer was relatively small in that the Club's costs as at that date could not have been substantial. The first offer was only slightly short of a request for capitulation. I do not, in these circumstances, consider that the plaintiff ought be ordered to pay the Club's costs on an indemnity basis. 7The position is different as at the date of the second offer. The parties had already prepared for a hearing of the matter which was listed in 2011. Justice Garling vacated the original hearing date of 26 September 2011 for four days of his own motion and it was not until 2014 that another hearing date was allocated. By 19 May 2014, the plaintiff had available to her effectively all the evidence in chief and the joint expert reports. She was in a good position to assess, with appropriate advice, her prospects of success and to decide whether she ought accept the Club's offer that there be a judgment in its favour with no order as to costs. 8In my view it was unreasonable for the plaintiff not to accept the Club's second offer, which involved a very substantial compromise by reason of the costs the Club must have expended by that time. Indeed in the second offer the Club's solicitors informed the plaintiff that it had expended over $120,000 (presumably on a solicitor/client basis) in costs as at that date. 9In these circumstances I propose to exercise my discretion by ordering that the plaintiff pay the Club's costs on an indemnity basis from 20 May 2014. Application by the Yees 10By letter dated 11 April 2014 the Yees made a Calderbank offer in which they offered to walk away from the proceedings and bear their own costs. The offer was expressed to be open for 28 days. The Yees also served a document entitled Notice of Offer of Compromise in which they repeated the Calderbank offer. The Notice of Offer of Compromise was made in accordance with Rule 20.26 of the Uniform Civil Procedure Rules 2005 (NSW) which permits a proposal to be made that there be judgment for a defendant with no order as to costs. 11Neither offer was accepted. 12The Yees' offer complied with r 20.26. Accordingly, they are entitled, unless I order otherwise, to an order that the plaintiff pays their costs on the usual basis up until the end of the day the offer was made and on an indemnity basis thereafter: r 42.15A. 13The Yees' offer to walk away from the proceedings constituted an offer to forego their costs if they were successful in the proceedings. By the time the Yees' offers of 11 April 2014 were served, the Yees had obviously expended considerable sums in preparing their defence of the matter. The pleadings had closed, evidence had been served and experts retained. The hearing date of 26 May 2014 was imminent. Their offers involved a genuine and significant degree of compromise. 14I do not consider that it is appropriate in these circumstances to make an order to displace the effect of r 42.15A. By not accepting the Yees' offer, the plaintiff required them to expend further sums to defend the proceedings, including at the hearing which took five days. The Yees are, in my view, entitled to their costs on the higher basis from 12 April 2014, being the day following the date of the offer. 15Even had the offer not been in the form of r 42.15A I would have been inclined to order the plaintiff to pay the Yees' costs from 12 April 2014 on an indemnity basis, on the basis of the Calderbank offer. Orders 16I make the following orders: (1)The plaintiff is to pay the first defendant's costs of the proceedings on the ordinary basis up to and including 19 May 2014 and on an indemnity basis thereafter. (2)The plaintiff is to pay the second and third defendants' costs of the proceedings on the ordinary basis up to and including 11 April 2014 and on an indemnity basis thereafter. ******* DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 July 2014