CITATION: Aldag v Eistis (No 2) [2008] NSWDC 186 HEARING DATE(S): Written submissions
JUDGMENT DATE:
29 August 2008JURISDICTION: Civil JUDGMENT OF: Gibson DCJ DECISION: 1. Amend order 3 of the judgment of 7 August 2008 to order the applicant to pay the respondent’s costs of the Notice of Motion.
2. Respondent’s application for costs to be paid on an indemnity basis refused.CATCHWORDS: COSTS - Calderbank offer - application by uninsured defendant for costs against solicitor for plaintiff in unsuccessful public liability claim - whether "walk-away" offer amounts to a compromise - whether seven days a reasonable period - whether unreasonable to reject the offer - application for indemnity costs refused LEGISLATION CITED: Civil Procedure Act 2005 (NSW), s 99
Legal Profession Act 1987 (NSW), s 198M
Legal Profession Act 2004 (NSW), s 348
Uniform Civil Procedure Rules 2005 (NSW), rr 42.1 and 42.27(1)CASES CITED: Aldag v Eistis [2008] NSWDC 157
Calderbank v Calderbank [1975] 3 All ER 333
Commonwealth of Australia v Gretton [2008] NSWCA 117
Degiorgio v Dunn (No 2) (2005) 62 NSWLR 284
Fowler, Corbett and Jessop t/as Haydon Fowler Corbett Jessop v Toro Constructions Pty Ltd [2008] NSWCA 178
Jones v Bradley (No 2) [2003] NSWCA 258
Leichhardt Municipal Council v Green [2004] NSWCA 341
Lemoto v Able Technical Pty Ltd [2005] NSWCA 153
LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd [2003] NSWCA 74
Ng v Chong [2005] NSWSC 385
Nobrega v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (No 2) [1999] NSWCA 133
Peter Willis v Health Communications Network Ltd (No. 2) [2008] NSWCA 2
Russell v Edwards (No 2) [2006] NSWCA 52
Seary v White (No 5 – Costs) [2008] NSWDC 21
Singh v Singh (No 3) [2004] NSWSC 866
Skalkos v Assaf (No 2) [2002] NSWCA 236
SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323
South Eastern Sydney Area Service v King [2006] NSWCA 2
Tickell v Trifleska Pty Ltd (1990) 25 NSWLR 353
Uniting Church in Australia Property Trust (NSW) t/as Northaven Retirement Village v Takacs (No 2) [2008] NSWCA 172
Wakaniuci v Adecco Australia Pty Limited; re Abboud [2008] NSWDC 174
Whyked Pty Ltd v Yahoo!7 Pty Ltd [2008] NSWSC 477PARTIES: Applicant: Jody Aldag
Respondent: Spiro EistisFILE NUMBER(S): 1187 of 2007 COUNSEL: Applicant: Mr P Jones
Respondent: Mr J DowningSOLICITORS: Applicant: Matthews Dooley & Gibson
Respondent: Middletons
JUDGMENT ON COSTS
Introduction
1. On 7 August 2008 I handed down judgment dismissing an application for the respondent to be held personally liable for the costs of a personal injury claim brought unsuccessfully by his client against the applicant, Mr Aldag: Aldag v Eistis [2008] NSWDC 157.
2. The respondent seeks an order that the applicant pay his costs of and incidental to the Notice of Motion and in addition an order that such costs be awarded on an indemnity basis.
3. Noting the warning of McColl JA in Lemoto v Able Technical Pty Ltd [2005] NSWCA…
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Details
- AGLC
- Aldag v Eistis (No 2) [2008] NSWDC 186
- Case
- [2008] NSWDC 186
- Decision Date
CaseChat Overview and Summary
In this case, the plaintiff, Aldag, sought costs against the defendant, Eistis, who was the solicitor for the plaintiff in an unsuccessful public liability claim. The defendant had made a Calderbank offer to settle the matter for a specific amount, which the plaintiff rejected. The defendant, who was uninsured, then applied for costs against the plaintiff’s solicitor, arguing that the rejection of the offer was unreasonable and amounted to a compromise. The court had to determine whether the defendant's "walk-away" offer constituted a compromise, whether the seven-day period provided for acceptance was reasonable, and whether it was unreasonable to reject the offer.
The court considered the nature and purpose of a Calderbank offer, noting that it is not a true compromise offer but rather an offer to resolve the proceedings on terms that are favourable to the offeror. The court examined the circumstances under which the offer was made and the period allowed for acceptance, concluding that the seven-day period was reasonable given the context. The court found that the rejection of the offer was not unreasonable, as it was made under the threat of potential liability for indemnity costs, which the defendant could not afford. The court also noted that the offer did not contain any terms that would have been beneficial to the plaintiff if accepted.
The court rejected the defendant's application for indemnity costs, stating that the rejection of the offer was not unreasonable. The court ordered the defendant to pay the plaintiff’s costs of the Notice of Motion and refused the defendant’s application for indemnity costs. The court emphasised that the rejection of a Calderbank offer does not necessarily lead to an award of indemnity costs against the offeror. The court concluded that the plaintiff’s solicitor was not unreasonable in rejecting the offer, and the defendant was not entitled to indemnity costs.
The court considered the nature and purpose of a Calderbank offer, noting that it is not a true compromise offer but rather an offer to resolve the proceedings on terms that are favourable to the offeror. The court examined the circumstances under which the offer was made and the period allowed for acceptance, concluding that the seven-day period was reasonable given the context. The court found that the rejection of the offer was not unreasonable, as it was made under the threat of potential liability for indemnity costs, which the defendant could not afford. The court also noted that the offer did not contain any terms that would have been beneficial to the plaintiff if accepted.
The court rejected the defendant's application for indemnity costs, stating that the rejection of the offer was not unreasonable. The court ordered the defendant to pay the plaintiff’s costs of the Notice of Motion and refused the defendant’s application for indemnity costs. The court emphasised that the rejection of a Calderbank offer does not necessarily lead to an award of indemnity costs against the offeror. The court concluded that the plaintiff’s solicitor was not unreasonable in rejecting the offer, and the defendant was not entitled to indemnity costs.
Orders
Orders of the court
1. Amend order 3 of the judgment of 7 August 2008 to order the applicant to pay the respondent's costs of the Notice of Motion. 2. Respondent's application for costs to be paid on an indemnity basis refused.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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