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Bahamad v Wong (No. 2)

Bahamad v Wong (No. 2)

Case [2020] NSWSC 1320 29 September 2020

Civil Litigation & Procedure

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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encountered for an offeree, when no clear period for acceptance by the offeree is set out in the offer and the offer is withdrawn after a short period – whether the offeree had sufficient evidence and submissions to hand properly to consider the offer – discussion of the relationship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:
A v N [2012] NSWSC 549
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
Ng v Chong [2005] NSWSC 385
Ofria v…

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 Bahamad v Wong (No. 2)

Details

AGLC: Bahamad v Wong (No. 2) [2020] NSWSC 1320
Case: [2020] NSWSC 1320
Decision Date: 29 September 2020

CaseChat Overview and Summary

The case of Bahamad v Wong (No. 2) involved a dispute between the plaintiff, Bahamad, and the defendants, Wong. The matter pertained to costs orders following a settlement of the plaintiff's claim for relief under section 88K of the Conveyancing Act 1919, which sought the creation of an easement over the defendants' properties. The proceedings had settled after three days of hearing, with the parties agreeing that the plaintiff would pay the defendants' costs of the proceedings up to and including the first day of the hearing. The Court's first judgment included a specified gross sum costs order under section 98(4)(c) of the Civil Procedure Act 2005, ordering the plaintiff to pay the defendants' costs of the second and third days of the hearing. The quantum of the 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 was now before the Court.

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