NSW Caselaw
District Court New South Wales
Medium Neutral Citation: Bailey v BMW Sydney Pty Limited & Anor (No. 2) [2020] NSWDC 139 Hearing dates: 22 April 2020 Date of orders: 29 April 2020 Decision date: 29 April 2020 Jurisdiction: Civil Before: Russell SC DCJ Decision: (1) Dismiss the defendants' application for an indemnity costs order. (2) Order the defendants to pay the plaintiff's costs in relation to defendants' application for an indemnity costs order. Catchwords: COSTS – Calderbank offers made by the defendants – defendants insisted upon a non-disparagement and confidentiality clause – not part of relief sought in proceedings – rejection by the plaintiff was not unreasonable COSTS – offers made at confidential mediation – mediation agreement made any such offers confidential – defendants not entitled to indemnity costs from settlement discussions during mediation COSTS – offer of monetary settlement "subject to a settlement deed" – no terms proposed for deed in offer – offer not complete and thus not capable of acceptance or consideration Legislation Cited: Civil Procedure Act 2005 (NSW) s 62(3)(d) Cases Cited: Jones v Bradley (No. 2) [2003] NSWCA 258 Category: Costs Parties: Bailey Bailey (Plaintiff) BMW Sydney Pty Limited (First Defendant) BMW Australia Finance Limited (Second Defendant) Representation: Counsel: A Macinnis (solicitor) (Plaintiff) M Gunning (Defendants)
Solicitors: Stevens Vuaran (Plaintiff) Mills Oakley (Defendants) File Number(s): 2018/30297
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