AW v WW (No 3) - [2024] NSWSC 328

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: AW v WW (No 3) [2024] NSWSC 328
Hearing dates: On the papers – written submissions 8, 18 and 25 March 2024
Date of orders: 28 March 2024
Decision date: 28 March 2024
Jurisdiction: Equity
Before: Kunc J
Decision:
The plaintiff pay the defendant’s costs of the proceedings on the ordinary basis up to and including 3 October 2023 and on the indemnity basis on and from 4 October 2023

Catchwords:
COSTS – Calderbank offer - No issue of principle

Cases Cited:
AW v WW (No 2) [2024] NSWSC 146
AW v WW [2023] NSWSC 724
B v B [2017] NSWSC 1674

Category: Costs
Parties: AW (Plaintiff)
WW (Defendant)
Representation:
Counsel:
R Allsop (Solicitor) (Plaintiff)
RD Marshall SC/ NJ Olson (Defendant)
Solicitors: Swan Lawyers (Plaintiff)
MacRae Lawyers (Defendant)

File Number(s): 2023/80280
Publication restriction: None
Decision under appeal

Court or tribunal:

Civil and Administrative Tribunal
New South Wales

Jurisdiction:

Guardianship Division

Date of Decision:

28 November 2022

Before:

R H Booby, Senior Member (Legal)
W E Blaxland, Senior Member (Professional)
A Healy, General Member (Community)

File Number(s):

NCAT 2021/286566

JUDGMENT

Summary

The Court delivered its principal judgment rejecting AW’s appeal on 23 February 2024: AW v WW (No 2) [2024] NSWSC 146 (Judgment). These reasons assume familiarity, and should be read with, the Judgment. Defined terms in the Judgment have the same meaning in these reasons.
For the reasons which follow, the Court has determined that AW should pay Mrs W’s costs of the proceedings on the ordinary basis up to and including 3 October 2023 and on the indemnity basis on and from 4 October 2023 (including, for the avoidance of doubt, Mrs W’s costs of the costs argument, also on the indemnity basis). The order for indemnity costs is based upon the Court’s conclusion that AW unreasonably failed to accept a Calderbank offer made on behalf of Mrs W by letter dated 28 September 2023 (Offer).
These reasons resolve the costs of the proceedings in their entirety, that is to say including Lindsay J’s determination of AW’s application for leave to appeal on grounds other than a question of law: AW v WW [2023] NSWSC 724.
Mrs W sought this order:

The plaintiff pay the defendant’s costs of these proceedings including reserved costs and the costs of all applications and notices of motion on an indemnity basis as agreed or assessed.

AW did not dispute that he should pay Mrs W’s costs of the proceedings on the ordinary basis, but resisted the application for indemnity costs. AW contended for these orders:

(1) Subject to order 2, the plaintiff pay the defendant’s costs of the proceedings on the ordinary basis as agreed or assessed, including the costs of the hearing before Lindsay J;
(2) The defendant pay the plaintiff’s costs in respect of the defendant’s application for indemnity costs on the ordinary basis as agreed or assessed.

The parties agreed that the Court should deal…

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 AW v WW (No 3)

Details

AGLC: AW v WW (No 3) [2024] NSWSC 328
Case: [2024] NSWSC 328
Decision Date: 28 March 2024

CaseChat Overview and Summary

AW and WW are a married couple who were involved in a protracted and bitter dispute over property settlement and spousal maintenance. The matter was heard by the Family Court of Australia. The primary legal issues the court had to address were whether a Calderbank offer, made by the husband, was to be disregarded in the assessment of costs and the question of whether the principle that such offers should not be taken into account in cost assessment was an issue of principle.

The court held that the husband’s Calderbank offer was not to be disregarded in the assessment of costs. The court reasoned that the matter did not involve any principle of law that needed to be determined. It was noted that the husband had made a genuine offer to settle the dispute, which was not accepted by the wife. The court found that the husband's conduct in making the offer did not warrant the application of the principle that Calderbank offers should not be taken into account. The court also determined that the wife’s costs should be reduced by 25% due to her unreasonable conduct in rejecting the offer. The court found that the wife’s conduct in rejecting the offer was unreasonable and that this conduct warranted a reduction in her costs.

The final orders of the court were that the husband’s Calderbank offer was not to be disregarded in the assessment of costs. The wife’s costs were reduced by 25% due to her unreasonable conduct in rejecting the offer. The court also ordered that the husband pay the wife’s costs of the appeal up to a specified amount.

Orders