Background
Elisa Rayman succeeded in negligence claims arising from excavation works at an adjoining North Bondi property that damaged her land and home. In the principal judgment, the Court held Janet Brown, the neighbouring owner, and Scopeview Projects Pty Ltd, the builder, liable. It assessed Brown’s liability at $1,164,782.20 plus interest and Scopeview’s proportionate liability at 15%, or $174,717.33 plus interest.
This costs judgment considered unaccepted offers made before the hearing. Rayman had offered to settle jointly with Brown and Scopeview; Scopeview later offered judgment for 33.3% of Rayman’s claim; and Brown maintained that she bore no liability. Rayman argued that Brown should bear Scopeview’s post-offer costs through a Sanderson order.
The Court’s Holding
Ward ACJ apportioned Rayman’s pre-10 October 2025 costs according to the defendants’ responsibility: Brown must pay 85% and Scopeview 15%. Brown must pay her 85% share on the ordinary basis to 3 October 2025 and on an indemnity basis from 4 October, because Rayman’s offer produced a judgment no less favourable to Rayman against Brown.
Brown must also pay 100% of Rayman’s costs from 10 October 2025 on an indemnity basis, including the reopening application and reopened hearing. But Rayman must pay Scopeview’s costs from 11 October 2025 on an indemnity basis, excluding the reopening costs, because Scopeview’s 33.3% offer was more favourable to Rayman than the 15% judgment against Scopeview. Brown must pay Scopeview’s reopening costs. The Court refused a Sanderson order because Brown’s denial of liability, without something more, did not justify making her bear Scopeview’s costs.
Key Takeaways
- A plaintiff’s costs against multiple liable defendants may be apportioned to reflect proportionate responsibility.
- A defendant’s percentage-based offer of compromise can trigger indemnity-cost consequences.
- A co-defendant’s denial of liability does not alone justify a Sanderson order shifting another defendant’s costs.
Why It Matters
The decision shows that separate settlement offers must be assessed independently, even where a plaintiff faces uncertainty about recovery from another defendant. A plaintiff who rejects a favourable offer from one defendant may face indemnity costs against that defendant despite succeeding against it at trial.
The Court also ordered interest on past costs, required settlement amounts referable to costs to be brought into account, and directed set-off of the parties’ costs orders against the judgment and interest.