[2014] ACTSC 194

1. Orders 2 and 4 of the orders made on 16 June 2014 be withdrawn and the following orders substituted for them:

2. The plaintiff pay the defendants' costs on a party and party basis up to and including 28 July 2010.

4. Otherwise the defendants pay the plaintiff's costs on a party and party basis from 29 July 2010 to judgment.

PROCEDURE - Supreme Court procedure - judgments and orders - amendment - "slip rule"

Court Procedures Rules 2006 (ACT), r 6906

Bakovski v Lenehan (No 2) [2014] NSWSC 739

Calderbank v Calderbank [1976] Fam 93

Financial Integrity Group Pty Ltd v Farmer (No 3) [2014] ACTSC 75

Financial Integrity Group Pty Ltd v Farmer (No 4) [2014] ACTSC 145

Polon v Dorian (No 3) [2014] NSWSC 740

G E Dal Pont Law of Costs (2nd ed, 2009, LexisNexis Butterworths: Sydney)

John Tarrant, Amending Final Judgments Orders (2010, The Federation Press: Sydney)

1. Order 1 of the orders made on 1 May 2014 be amended by omitting "$8,720.00" and substituting "$5,756.36".

2. The plaintiff pay the defendant's costs on a party and party basis up to and including 28 April 2010.

3. Each party pay their own costs of the submissions made in response to the order made on 13 August 2013.

4. Otherwise, the defendants pay the plaintiff's costs on a party and party basis from 29 April 2010 to judgment.

See Financial Integrity Group Pty Ltd v Farmer (No 4) [2014] ACTSC 145.

2. The decision was required so as to address the issue of costs as well as to make an amendment to the original order I had made as to the damages payable under the usual undertaking as to damages made to accompany an interim injunction which I subsequently discharged as having not been properly made. See Financial Integrity Group Pty Ltd v Farmer (No 3) [2014] ACTSC 75 at [12].

3. Orders 2 and 4 were made because of the effect of a letter sent by the plaintiff's lawyers to the defendant's lawyers making an offer of compromise in accordance with the principles of Calderbank v Calderbank [1976] Fam 93. I found that the refusal of the defendants to accept the offer of compromise contained in the letter was unreasonable and that the plaintiff was, therefore, entitled to costs from the date when the defendants failed to accept the offer.

4. The letter was dated 14 July 2010 and the offer remained open until 28 July 2010. In my reasons, I said (at [47]):

In my view, it is not appropriate to make a special costs order, but the defendant should pay the plaintiff's costs from 28 July 2010.

5. While the consequences of the rejection of the failure to accept an offer made in accordance with the principles of Calderbank v Calderbank is often stated as requiring a different costs order from the date of the offer, or a few days after to allow for it to be considered properly, as articulated by G E Dal Pont Law of Costs (2nd ed, 2009, LexisNexis Butterworths: Sydney) p 394; [13.46], the precise date from which the costs under such an order should be payable does not seem to have been subject to much, if any, detailed consideration.

6. The date is often referred to as the date of the offer and this date, despite the period during which the offer remains open, is often the date from which the different costs consequences are to start. See, for example, Bakovski v Lenehan (No 2) [2014] NSWSC 739.

7. The date, however, has sometimes been set as the last day to which the offer remains open, as in Polon v Dorian (No 3) [2014] NSWSC 740 at [41]. It seems to me that unless the offer is expressly rejected at some earlier date, the last day to which it remains open is, in principle, the date from which any costs consequences should flow. I have, however, not had the benefit of argument on the issue.

8. Despite this, as appears above, the orders specify "April" and not "July" as the date to and from which certain costs consequences flow. That is clearly an error, to which my attention was drawn by the parties by letter.

9. In this case, the facts and any comment in my reasons both show that reference to "April" in orders 2 and 3 should be a reference to "July".

10. A formal order for these orders has not been sealed. This is the point at which it is no longer possible to reconsider the orders, as pointed out in the useful text, John Tarrant, Amending Final Judgments Orders (2010, The Federation Press: Sydney) at p 5. I can, accordingly, withdraw them and remake them. The error is, in any event, one that I can make under the "slip rule", namely r 6906 of the Court Procedures Rules 2006 (ACT). It is, within the terms of that rule, clearly a clerical mistake.

11. Accordingly, I will withdraw orders 2 and 4 and remake them in the same terms, but substituting "July" for "April" in each case.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.