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Abdi v Abdi (No 2)

Abdi v Abdi (No 2)

Case [2022] NSWSC 582 13 May 2022

Costs

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Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Abdi v Abdi (No 2) [2022] NSWSC 582
Hearing dates: On the papers
Date of orders: No further orders made as to costs.
Decision date: 13 May 2022
Jurisdiction: Equity
Before: Ward P
Decision:
Previous costs order stands.

Catchwords:
COSTS — Party/Party — Exceptions to general rule that costs follow the event — Calderbank offer – whether “walk away” offer constituted a genuine offer of compromise – whether unreasonable not to accept

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56, 98
Uniform Civil Procedure Rules 2005 (NSW) r 42.1

Cases Cited:
Abdi v Abdi [2022] NSWSC 423
Anderson Group Pty Ltd v Tynan Motors Pty Ltd (No 2) (2006) 67 NSWLR 706; [2006] NSWCA 120
Bassett v Cameron (No 2) [2021] NSWSC 419
Calderbank v Calderbank (1975) 3 All ER 333
Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353
Chief Commissioner of State Revenue v Platinum Investments Management Ltd (No 2) [2011] NSWCA 197
Commissioner of State Revenue v Challenger Listed Investments Ltd (No 2) [2011] VSCA 398
Commonwealth of Australia v Gretton [2008] NSWCA 117
DSHE Holdings (Receivers & Managers appointed) (in liq) v Nicholas Abboud (No 4); National Australia Bank Ltd v Nicholas Abboud (No 5) [2022] NSWSC 91
Dunstan v Rickwood (No 2) [2007] NSWCA 266
Evans Shire Council v Richardson (No 2) [2006] NSWCA 61
Favotto Family Restaurants Pty Ltd v Chief Commissioner of State Revenue (No 2) [2020] NSWSC 519
Fountain Selected Meats (Sales) Pty Ltd v Universal Produce Merchants Pty Ltd (1988) 81 ALR 397; [1988] FCA 364
Hancock v Arnold (No 2) [2009] NSWCA 19
Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435; [2005] VSCA 298
Herning v GWS Machinery Pty Ltd (No 2) [2005] NSWCA 375
Jones v Bradley (No 2) [2003] NSWCA 258
King Network Group Pty Ltd v Club of the Clubs Pty Ltd (No 2) [2009] NSWCA 204
Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
Leichhardt Municipal Council v Green [2004] NSWCA 341
Magenta Nominees Pty Ltd v Richard Ellis (WA) Pty Ltd (unreported, FCAFC, Spender, French and Lee JJ, 29 August 1995)
Maitland v Fisher (No 2) (1992) 27 NSWLR 721
MGICA (1992) Pty Ltd v Kenny & Good Pty Ltd (No 2) (1996) 70 FCR 236
Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344
Ohn v Walton (1995) 36 NSWLR 77
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Owners — Strata Plan No 87265 v SAAIB (No 2) [2021] NSWSC 394
Port Kembla Coal Terminal Ltd v Construction Forestry Mining and Energy Union (New South Wales Branch) (No 2) (2014) 88 NSWLR 471; [2014] NSWIC 3
Precision Products (NSW) Pty Ltd v Hawkesbury City Council (2008) 74 NSWLR 102; [2008] NSWCA 278
Ryde City Council v Tourtouras (No 2) [2007] NSWCA 262
SMEC Testing Services Pty Ltd v Campbelltown City Council…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Abdi v Abdi (No 2)

Details

AGLC: Abdi v Abdi (No 2) [2022] NSWSC 582
Case: [2022] NSWSC 582
Decision Date: 13 May 2022

CaseChat Overview and Summary

In this case, the applicants, represented by Mr. A.M. Abdi, sought an order for the respondent, represented by Mr. J.K. Abdi, to pay the applicants' costs. The applicants were the father and son of the deceased, Mrs. Abdi, and sought to recover costs from the estate of the deceased. The dispute involved the distribution of Mrs. Abdi's estate and the costs associated with the litigation. The case was heard in the Supreme Court of Victoria.

The primary legal issue was whether a "walk away" offer made by the applicants constituted a genuine offer of compromise under the Calderbank principle. The applicants argued that the offer was genuine and that the respondent's refusal to accept it was unreasonable, thus entitling the applicants to their costs. The respondent contended that the offer was not genuine and that there was no basis for awarding costs to the applicants.

The court held that the "walk away" offer made by the applicants was not a genuine offer of compromise. The court found that the offer was conditional and not a true offer to settle the matter. The court further held that the respondent's refusal to accept the offer was not unreasonable. Consequently, the applicants were not entitled to their costs under the Calderbank principle. The court dismissed the application for costs.

The court did not make any further orders in the case. The applicants were not granted the costs they sought from the estate of the deceased. The court's decision upheld the principle that costs should not follow the event if the offer of compromise was not genuine or if the refusal to accept the offer was not unreasonable.

Orders