Australia, Aug. 2 -- New South Wales Land and Environment Court issued text of the following judgement on July 2:

1. On 12 June 2025 I gave judgment for the plaintiff against the defendant for $133,751 and ordered the defendant pay the costs of the plaintiff: Willis v Orange City Council [2025] NSWDC 208 (the Primary Judgment).

2.The plaintiff has applied for a variation of that costs order based upon two Offers of Compromise, both dated 21 October 2024 (PX 10). The first Offer of Compromise offered to settle the proceedings on the basis of a judgment for the plaintiff, with damages to be assessed, but reduced by 20%. This form of an offer was recognised as a valid offer by the Court of Appeal in Curtis v Harden Shire Council (No 2) [2015] NSWCA 45. The second Offer of Compromise offered to settle the proceedings on the basis of judgment for the plaintiff in the sum of $100,001.

The Rule

3. The plaintiff relies upon r 42.14 of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR). That rule provides as follows:

42.14 Where offer not accepted and judgment no less favourable to plaintiff

(cf SCR Part 52A, rule 22; DCR Part 39A, rule 25)

(1) This rule applies if the offer is made by the plaintiff, but not accepted by the defendant, and the plaintiff obtains an order or judgment on the claim no less favourable to the plaintiff than the terms of the offer.

(2) Unless the court orders otherwise, the plaintiff is entitled to an order against the defendant for the plaintiff's costs in respect of the claim-

(a) assessed on the ordinary basis up to the time from which those costs are to be assessed on an indemnity basis under paragraph (b), and

(b) assessed on an indemnity basis-

(i) if the offer was made before the first day of the trial, as from the beginning of the day following the day on which the offer was made, and

(ii) if the offer was made on or after the first day of the trial, as from 11 am on the day following the day on which the offer was made.

4. Rule 42.14(1) is satisfied, as both offers made by the plaintiff, which were not accepted by the defendant, were prior to the plaintiff obtaining judgment on his claim "no less favourable to the plaintiff than the terms of the offer".

Submissions

5. The defendant provided a written submission as follows:

1) The Primary Judgment found at [160] that the defendant knew of the risk posed by the hole, because it knew of the fallen sign, having been informed of that by Mr Penhall.

2) The plaintiff did not notify the defendant of Mr Ostini's evidence regarding Mr Penhall until 13 March 2025, less than a week prior to the commencement of the hearing on 19 March 2025. (Mr Penhall had died some years ago, but Mr Ostini, who worked with Mr Penhall, gave evidence of statements made by Mr Penhall to the effect that he had reported the problem with the sign to the Council. I accepted this evidence: Primary Judgment at [30] - [45]).

3) The evidence regarding Mr Penhall's complaints significantly impacts the liability issues in the matter.

4) At the time the plaintiff's offers were made the plaintiff did not make the defendant aware of that evidence.

5) The rejection of the plaintiff's offers by the defendant was not unreasonable and the defendant was not fully informed of the case it would ultimately be asked to meet.

6) There was a significant change in the nature of the case presented at the time of the offers, to the case presented at the hearing. The evidence at the hearing was different from that known to the defendant at the time of the plaintiff's offers.

6. The defendant referred to the decision of the Court of Appeal in South Eastern Area Health Service v King [2006] NSWCA 2. That case involved a Calderbank letter, rather than an Offer of Compromise made under the UCPR. At [99] the Court of Appeal said that the discretion to award indemnity costs following a Calderbank letter "must be considered having regard to all of the circumstances of the case, including the relevant strengths and weaknesses of each party's case as they may have been apparent to the parties at the time the offer was made."

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/197c98334cc6b4ba059b5e0a)

Disclaimer: Curated by HT Syndication.