Yisheng Construction Pty Ltd v City Garden Australia Pty Ltd

Judgment

1. On 9 March 2022, I delivered judgment in this matter in which I found in favour of the first defendant and ordered that the plaintiffs pay the first defendant's costs (Yisheng Construction Pty Ltd v City Garden Australia Pty Ltd [2022] NSWSC 221).
2. By a notice of motion filed on 15 March 2022, the first defendant seeks to vary the order in relation to costs so that its costs are assessed on the ordinary basis up to 19 May 2021 and on an indemnity basis from 20 May 2021. In support of that application, the first defendant relies on an offer of compromise dated 19 May 2021 by which it offered to settle the whole proceedings on the basis that there be judgment for the first defendant with no order as to costs. The offer was expressed to be open for acceptance for 28 days. It was expressed to be made pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 20.26, which relevantly provides: 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. …