Vary the order made on 18 October 2019 by ordering the appellant to pay the first respondent’s costs of the appeal on the ordinary basis until 24 May 2019 and on an indemnity basis thereafter
Catchwords:
COSTS – Calderbank letter – variation to costs order
THE COURT: On 18 October 2019 this Court delivered judgment in respect of an appeal brought by Mr Vase against Ms Bokan: Antov v Bokan (No 2) [2019] NSWCA 250. The second respondent to the appeal, Ms Antova, did not participate in the hearing.
The Court ordered that the appeal be dismissed with costs.
Immediately following the making of those orders, counsel for the first respondent made an application to file written submissions seeking a variation of the costs order in light of a Calderbank letter which had been sent on 24 April 2019, which was 14 days after the first respondent had filed its submissions in reply to the appellant’s written submissions and approximately 9 weeks prior to the hearing of the appeal on 2 July 2019.
The terms of the offer contained in the Calderbank letter were relevantly as follows:
“We are instructed to make the following offer to settle the proceedings:
1. The Court of Appeal proceedings 2018/332235 be dismissed with no order as to costs;
2. The existing order that the [f]irst [r]espondent to pay the [a]ppellant’s costs of the Notice of Motion for security for costs remain.
(“Offer”)
This Offer is open to be accepted until 4pm 24 May 2019. The Offer must be accepted in writing.
Our client reserves the right to rely on this letter on the question of costs in accordance with the principles set out in Calderbank v Calderbank [1976] Fam 93 and subsequent cases on point and pursuant to s 131(2)(h) of the Evidence Act 1995 (NSW).” (emphasis in original).
Both sides have filed submissions in relation to the variation of the costs order sought by the first respondent.
The first respondent accepted that she bore the onus of satisfying the Court that it should exercise its discretion to order indemnity costs…
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.
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Details
AGLC
Antov v Bokan (No 3) [2019] NSWCA 265
Case
[2019] NSWCA 265
Decision Date
CaseChat Overview and Summary
In *Antov v Bokan (No 3)*, the New South Wales Court of Appeal considered an application to vary a costs order made on 18 October 2019. The appeal concerned the appropriate basis for awarding costs, specifically in light of a *Calderbank* letter.
The central legal issue before the Court of Appeal was whether the costs order previously made should be varied to reflect the terms of a *Calderbank* offer made by the appellant. The court was required to determine whether the appellant's offer to settle was more favourable to the first respondent than the ultimate outcome of the appeal, and if so, what impact this should have on the costs awarded.
The Court of Appeal reasoned that the appellant's *Calderbank* letter, dated 24 May 2019, constituted an offer to settle the appeal. By comparing the terms of this offer with the final outcome of the appeal, the court determined that the offer was more advantageous to the first respondent than the judgment ultimately obtained. Applying the principle that a party who makes a reasonable offer to settle which is rejected, and subsequently obtains a less favourable outcome, may be entitled to an order for costs on an indemnity basis from the date of the offer, the court decided to vary the original costs order.
Consequently, the Court of Appeal varied the order made on 18 October 2019, ordering the appellant to pay the first respondent’s costs of the appeal on the ordinary basis until 24 May 2019, and on an indemnity basis thereafter.
Orders
Orders of the court
Vary the order made on 18 October 2019 by ordering the appellant to pay the first respondent’s costs of the appeal on the ordinary basis until 24 May 2019 and on an indemnity basis thereafter