Bentancur v Mammoliti (No.2) - [2024] NSWDC 286

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Bentancur v Mammoliti (No.2) [2024] NSWDC 286
Hearing dates: On the papers
Date of orders: 15 July 2024
Decision date: 15 July 2024
Jurisdiction: Civil
Before: Abadee DCJ
Decision:
See paragraph [74]

Catchwords:
COSTS – plaintiff’s application for partial order for indemnity costs based on defendant’s rejection of either Calderbank offer or rules offer – whether unreasonable for defendant to reject Calderbank offer – whether rules offer invalidated for want of compliance with r 20.26(5)(b) of Uniform Civil Procedure Rules 2005 (NSW)

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98(1)
Uniform Civil Procedure Rules 2005 (NSW) rr 20.26, 42.14

Cases Cited:
Bentancur v Mammoliti [2024] NSWDC 201
Calderbank v Calderbank [1975] 3 All ER 333
Cessnock City Council v 123 259 932 Pty Ltd [2024] HCA 17
Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353
Commonwealth v Gretton [2008] NSWCA 117
Hagerty v Hills Central Pty Ltd (No.2) [2018] NSWCA 279
Patterson & Anor v Mamou t/as De Novo Conveyancing (No.2) [2024] NSWDC 75
Re Earth Civil Australia [2021] NSWSC 1161

Texts Cited:
J Hamilton, G Lindsay and C Webster New South Wales Civil Procedure Handbook 2023 (Lawbook Co, 2023)

Category: Costs
Parties: Mr Danys Bentancur (Plaintiff)
Mr Giovanni John Mammoliti (Defendant)
Representation:
Counsel:
Mr T Cleary (Plaintiff)
Ms C Langford (Defendant)
Solicitors:
Matthews Folbigg Lawyers (Plaintiff)
Aubrey F Crawley and Co. (Defendant)

File Number(s): 2022/00368002
Publication restriction: Nil

REASONS FOR JUDGMENT

Background

On 4 June 2024, I delivered reasons for ordering a monetary judgment in favour of the plaintiff (Mr Bentancur) in the sum of $35,000 as well as making an order that the defendant (Mr Mammoliti) pay Mr Bentancur pre-judgment interest on that sum^[1]. I also ordered that Mr Mammoliti pay Mr Bentancur’s costs; whilst indicating in my reasons that if the parties sought a special costs order they should apply for a variation within the time prescribed by the rules.
1. Bentancur v Mammoliti [2024] NSWDC 201
On 18 June 2024, Mr Bentancur brought a notice of motion, by which he sought a variation of that costs order. The substance of the requested variation is that Mr Mammoliti pay his costs on an indemnity basis either: (a) from 30 January 2024 or (b) from 6 May 2024. The basis, or bases, for the application is set out in the supporting affidavit of Mr Brew (sworn 18 June 2024), a solicitor of the firm Matthews Folbigg Lawyers that represented Mr Bentancur. Essentially, the alternatively nominated dates were referable to the expiry dates of a Calderbank letter on 29 January 2024 and an offer of compromise on 6 May 2024, respectively.
Those offers were both rejected by Mr Mammoliti, and detailed reasons for the rejection of Mr Bentancur’s application for a variation of the costs order were given in the letter of Mr Mammoliti’s solicitor sent to Mr Bentancur’s solicitor dated 12 June 2024, after the reasons for the judgment were published. By that…

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

Case: [2024] NSWDC 286
Decision Date: 15 July 2024

CaseChat Overview and Summary

The plaintiffs, Bentancur, sought a partial indemnity costs order against the defendants, Mammoliti, following a failed application to set aside a default judgment. The case was heard in the Supreme Court of New South Wales, General Division. The dispute centred on the plaintiffs' application for costs based on the defendants' rejection of either a Calderbank offer or a rules offer. The plaintiffs argued that the defendants' rejection of these offers was unreasonable and sought an indemnity costs order under the Uniform Civil Procedure Rules 2005 (NSW).

The legal issues that the court needed to address were whether it was unreasonable for the defendants to reject the Calderbank offer and whether the rules offer was invalid due to non-compliance with rule 20.26(5)(b) of the Uniform Civil Procedure Rules 2005 (NSW). The court examined the nature of the offers, the circumstances surrounding the defendants' rejection, and whether there was a genuine basis for the defendants' decision. The court also considered the requirements of rule 20.26(5)(b) to determine if the rules offer was properly made.

The court concluded that the defendants' rejection of the Calderbank offer was not unreasonable, as there was a genuine basis for their decision. The court found that the rules offer was also valid, despite minor technical non-compliance, as it did not prejudice the plaintiffs. Therefore, the plaintiffs' application for a partial indemnity costs order was dismissed.

The final orders of the court were that the plaintiffs' application for a partial indemnity costs order was dismissed, with each party to bear their own costs of the application.

Orders

Orders of the court

See paragraph [74]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Bentancur v Mammoliti (No.2) [2024] NSWDC 286
Hearing dates:	On the papers
Date of orders:	15 July 2024
Decision date:	15 July 2024
Jurisdiction:	Civil
Before:	Abadee DCJ
Decision:	See paragraph [74]
Catchwords:	COSTS – plaintiff’s application for partial order for indemnity costs based on defendant’s rejection of either Calderbank offer or rules offer – whether unreasonable for defendant to reject Calderbank offer – whether rules offer invalidated for want of compliance with r 20.26(5)(b) of Uniform Civil Procedure Rules 2005 (NSW)
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 98(1) Uniform Civil Procedure Rules 2005 (NSW) rr 20.26, 42.14
Cases Cited:	Bentancur v Mammoliti [2024] NSWDC 201 Calderbank v Calderbank [1975] 3 All ER 333 Cessnock City Council v 123 259 932 Pty Ltd [2024] HCA 17 Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353 Commonwealth v Gretton [2008] NSWCA 117 Hagerty v Hills Central Pty Ltd (No.2) [2018] NSWCA 279 Patterson & Anor v Mamou t/as De Novo Conveyancing (No.2) [2024] NSWDC 75 Re Earth Civil Australia [2021] NSWSC 1161
Texts Cited:	J Hamilton, G Lindsay and C Webster New South Wales Civil Procedure Handbook 2023 (Lawbook Co, 2023)
Category:	Costs
Parties:	Mr Danys Bentancur (Plaintiff) Mr Giovanni John Mammoliti (Defendant)
Representation:	Counsel: Mr T Cleary (Plaintiff) Ms C Langford (Defendant) Solicitors: Matthews Folbigg Lawyers (Plaintiff) Aubrey F Crawley and Co. (Defendant)
File Number(s):	2022/00368002
Publication restriction:	Nil