Hart v Veloce Expresso Pty Ltd

Judgment

1. On 23 April 2016 the plaintiff slipped and fell in the domestic terminal known as Terminal 2 of Kingsford Smith Airport in an area adjacent to the café which was run by the first defendant. She suffered a number of injuries as a result of that fall and commenced proceedings against the first defendant as well as against the cleaning company responsible for cleaning the area on which she fell.
2. The matter was heard before me on 19, 20 and 21 February 2019 and on 5 April 2019. On 14 June 2019 I gave judgment being a verdict for the first defendant and ordered that the plaintiff pay the first defendant's costs.
3. Leave was given to the first defendant to apply for variation of the order for costs. It has done so and seeks an order that the plaintiff pay its costs on an ordinary basis between the commencement of the proceedings and 13 February 2019 and on an indemnity basis thereafter.
4. The basis for that application is that on 12 February 2019 the first defendant's solicitors served an offer of compromise on the plaintiff's solicitors in the following terms: "The First Defendant offers to resolve the entirety of the Plaintiff's claim against it on the following terms: 1 Judgement in favour of the Plaintiff as against the First Defendant in the sum of $99,166.00. 2 This offer is open for acceptance for 6 days and expires on 18 February 2019. This offer is made in accordance with Rule 20.26 of the Uniform Civil Procedure Rules 2005 [UCPR]."
5. Rule 20.26 provides as follows: 20.26 Making of offer (1) In any proceedings, any party may, by notice in writing, make an offer to any other party to compromise any claim in the proceedings, either in whole or in part, on specified terms. (2) An offer under this rule: (a) must identify: (i) the claim or part of the claim to which it relates, and (ii) the proposed orders for disposal of the claim or part of the claim, including, if a monetary judgment is proposed, the amount of that monetary judgment, and (b) if the offer relates only to part of a claim in the proceedings, must include a statement: (i) in the case of an offer by the plaintiff, as to whether the balance of the proceedings is to be abandoned or pursued, or (ii) in the case of an offer by a defendant, as to whether the balance of the proceedings will be defended or conceded, and (c) must not include an amount for costs and must not be expressed to be inclusive of costs, and (d) must bear a statement to the effect that the offer is made in accordance with these rules, and (e) if the offeror has made or been ordered to make an interim payment to the offeree, must state whether or not the offer is in addition to that interim payment, and (f) must specify the period of time within which the offer is open for acceptance. (3) An offer under this rule may propose: (a) a judgment in favour of the defendant: (i) with no order as to costs, or (ii) despite subrule (2) (c), with a term of the offer that the defendant will pay to the plaintiff a specified sum in respect of the plaintiff's costs, or (b) that the costs as agreed or assessed up to the time the offer was made will be paid by the offeror, or (c) that the costs as agreed or assessed on the ordinary basis or on the indemnity basis will be met out of a specified estate, notional estate or fund identified in the offer. (4) If the offeror makes an offer before the offeree has been given such particulars of the offeror's claim, and copies or originals of such documents available to the offeror, as are necessary to enable the offeree to fully consider the offer, the offeree may, within 14 days of receiving the offer, give notice to the offeror that: (a) the offeree is unable to assess the reasonableness of the offer because of the lack of particulars or documents, and (b) in the event that rule 42.14 applies to the proceedings, the offeree will seek an order of the court under rule 42.14 (2). (5) The closing date for acceptance of an offer: (a) in the case of an offer made two months or more before the date set down for commencement of the trial - is to be no less than 28 days after the date on which the offer is made, and (b) in any other case - is to be such date as is reasonable in the circumstances. (6), (7) (Repealed) (8) Unless the notice of offer otherwise provides, an offer providing for the payment of money, or the doing of any other act, is taken to provide for the payment of that money, or the doing of that act, within 28 days after acceptance of the offer. (9) An offer is taken to have been made without prejudice, unless the notice of offer otherwise provides. (10) A party may make more than one offer in relation to the same claim. (11) Unless the court orders otherwise, an offer may not be withdrawn during the period of acceptance for the offer. (12) A notice of offer that purports to exclude, modify or restrict the operation of rule 42.14 or 42.15 is of no effect for the purposes of this Division. (Emphasis in original)