Abson by his tutor NSW Trustee and Guardian v Johnston (No 2)

In Abson by his tutor NSW Trustee and Guardian v Johnston (No 2), the court considered a dispute involving costs in the context of settled proceedings. The plaintiff, Abson, represented by his tutor NSW Trustee and Guardian, had successfully obtained the orders he sought. The legal issues focused on whether an order for costs should be made, given that the plaintiff would have succeeded at the hearing, and whether the defendant's conduct was unreasonable in rejecting Calderbank offers. Additionally, the court considered the defendant's doubtful capacity to pay costs and the plaintiff's request for a gross sum lower than their actual costs.

The court deliberated on the principles of awarding costs, particularly in cases where proceedings have settled. It examined the defendant's unreasonable rejection of Calderbank offers, which are proposals made by a party during negotiations to settle proceedings, often with an offer to pay costs up to a certain point. The court found that the defendant's conduct was unreasonable, and it assessed the plaintiff's capacity to pay the costs. Despite the plaintiff's request for a gross sum lower than their actual costs, the court determined that a gross sum costs order was appropriate under the circumstances.

Ultimately, the court made a gross sum costs order in favour of the plaintiff. The reasoning was based on the defendant's unreasonable conduct in rejecting the Calderbank offers, the plaintiff's successful outcome, and the doubtful capacity of the defendant to pay the costs. The court's decision highlighted the importance of reasonable conduct in settlement negotiations and the implications for costs in settled proceedings. The final orders reflected the court's assessment of the costs that should be awarded, considering the various factors involved in the dispute.