Supreme Court
New South Wales
Medium Neutral Citation: Bahamad v Wong (No. 2) [2020] NSWSC 1320 Hearing dates: Completed on the papers in chambers. Date of orders: 29 September 2020 Decision date: 29 September 2020 Jurisdiction: Equity Before: Slattery J Decision: Indemnity costs order not made.
Catchwords: CIVIL PROCEDURE – Costs orders – indemnity costs – in its first judgment the Court made a specified gross sum costs order under Civil Procedure Act 2005, s 98(4)(c) – the order followed the settlement of the plaintiffs’ claim for relief under Conveyancing Act 1919, s 88K for the creation of an easement over the defendants’ properties – the proceedings had settled after three days of hearing – the parties agreed that the plaintiffs pay the defendants’ costs of the proceedings up to and including the first day of the hearing – in its first judgment the Court ordered the plaintiffs to pay the defendants’ costs of the second and third days of hearing – the quantum of a specified gross sum costs order was fixed in the first judgment – but a Calderbank offer was made by the defendants prior to the costs argument and is now before the Court – whether an indemnity costs order should be made in respect of the contest over a specified gross sum cost order – whether sufficient time allowed to the offeree for acceptance of the offer – discussion of the difficulties encountered for an offeree, when no clear period for acceptance by the offeree is set out in the offer and the offer is withdrawn after a short period – whether the offeree had sufficient evidence and submissions to hand properly to consider the offer – discussion of the relationship between the complexity of the material to be considered by the offeree and the length of time allowed for acceptance of the offer - discussion of the form of Calderbank offers and of the need for them to clearly warn that non acceptance of the offer may result in an application for indemnity costs.
Legislation Cited: Civil Procedure Act 2005, s 98(4)(c)
Conveyancing Act 1919, s 88K
Cases Cited: Bahamad v Wong [2020] NSWSC 991
Calderbank v Calderbank [1975] 3 All ER 333
Castro v Hillery [2003] 1 Qd R 651
Chaina v Alvaro Homes Pty Limited [2008] NSWCA 353
Evans Shire Council v Richardson (No. 2) [2006] NSWCA 61
Equity 8 Pty Limited v Shaw Stockbroking Limited [2007] NSWSC 503
Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No. 2) (2005) 13 VR 435
Jones v Bradley (No 2) [2003] NSWCA 258
King Network Group Pty Limited v Club of the Clubs Pty Limited (No. 2) [2009] NSWCA 204
Leichhardt Municipal Council v Green [2004] NSWCA 341
Miwa Pty Ltd v Siantan Properties Pte Ltd (No. 2) [2011] NSWCA 344
Nationwide News Pty Limited v Naidu; ISS Security Pty Ltd v Naidu (2007) 71 NSWLR 471
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- AGLC
- Bahamad v Wong (No. 2) [2020] NSWSC 1320
- Case
- [2020] NSWSC 1320
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court were whether an indemnity costs order should be made in respect of the contest over a specified gross sum costs order and whether sufficient time was allowed for the plaintiff to accept the defendants' Calderbank offer. The Court considered the difficulties encountered by the offeree, when no clear period for acceptance by the offeree is set out in the offer and the offer is withdrawn after a short period. The Court also discussed whether the offeree had sufficient evidence and submissions to hand properly to consider the offer. Furthermore, the Court examined the relationship between the complexity of the material to be considered by the offeree and the length of time allowed for acceptance of the offer. The Court also discussed the form of Calderbank offers and the need for them to clearly warn that non-acceptance of the offer may result in an application for indemnity costs.
After considering the aforementioned factors, the Court found that an indemnity costs order should be made in respect of the contest over a specified gross sum costs order. The Court held that the plaintiff had not been given sufficient time to consider the defendants' Calderbank offer. The Court noted that the offer was withdrawn after a short period and that the plaintiff did not have sufficient evidence and submissions to hand properly to consider the offer. The Court emphasised the importance of Calderbank offers clearly warning that non-acceptance of the offer may result in an application for indemnity costs. The Court's final orders included an indemnity costs order in favour of the defendants, reflecting the Court's findings on the legal issues presented in the case.
Orders
Orders of the court
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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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