Buono v Mazzella (No 2) - [2016] NSWSC 891

Supreme Court

New South Wales

Medium Neutral Citation: Buono v Mazzella (No 2) [2016] NSWSC 891
Hearing dates: By way of written submissions
Date of orders: 28 June 2016
Decision date: 28 June 2016
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court orders that:
(1) The cross claimant is to pay the first cross defendant’s costs of the cross claim on an indemnity basis and the defendant is to pay the plaintiff’s costs of these proceedings on an indemnity basis up until 26 May 2016.
Catchwords: COSTS – indemnity costs – where offer of Calderbank letter – reasonableness of rejection – rejection was unreasonable
Legislation Cited: Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Buono v Mazzella [2016] NSWSC 659
Calderbank v Calderbank [1975] 3 WLR 586
Cat Media Pty Ltd v Allianz Australia Insurance Ltd [2006] NSWSC 790
Leichhardt Municipal Council v Green [2004] NSWCA 341
Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344
Sydney City Council v Geftlick [2006] NSWCA 280
Category: Costs
Parties: Maddalena Buono (Plaintiff/First Cross Defendant)
Porfirio Mazzella (Defendant/Cross Claimant)
Representation:
Counsel:
G Turner (Plaintiff/Cross Defendant)
Solicitors:
CKB Associates Lawyers (Plaintiff/Cross Defendant)
P Mazzella (Defendant/Cross Claimant in person)

File Number(s): 2015/137381
Publication restriction: Nil

Judgment

HER HONOUR: This is a judgment concerning whether costs should be awarded on an indemnity basis. On 26 May 2016, I delivered judgment in this matter: see Buono v Mazzella [2016] NSWSC 659. The plaintiff/first cross defendant is Maddalena Buono. The defendant/cross claimant is Porfirio Mazzella.
The hearing took place over a period of four days being 26, 27, 28 and 29 April 2016. The defendant/cross claimant did not have legal representation but had the assistance of an interpreter. Judgment was entered in favour of the plaintiff/first cross defendant that she have possession of the property at X XX, Willoughby (“the property”). The cross claim was dismissed and I made an order that the cross claimant was to pay the first cross defendant’s costs of the cross claim and that the defendant was to pay the plaintiff’s costs of these proceedings to date. Paragraphs 3 and 4 of the statement of claim that relate to damages and mesne profits have been stood over for determination after the defendant vacates the property.
On 26 May 2016, when judgment was delivered, the plaintiff made an oral application for indemnity costs. The Court gave directions for the filing of brief submissions. Both parties have now provided those written submissions.
The plaintiff seeks orders pursuant to Uniform Civil Procedure Rules 2005 (NSW) 42.2 and 42.5 (“UCPR”) that the cross claimant pay the first cross defendant’s costs of the cross claim on an indemnity basis and the defendant pay the plaintiff’s costs of these proceedings on an indemnity basis up until 26 May 2016. For convenience, I shall refer to Mrs Buono as the plaintiff and Mr Mazzella as the defendant.
By statement of claim filed 8 May 2015, the plaintiff sought possession…

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 Buono v Mazzella (No 2)

Details

AGLC: Buono v Mazzella (No 2) [2016] NSWSC 891
Case: [2016] NSWSC 891
Decision Date: 28 June 2016

CaseChat Overview and Summary

The case of Buono v Mazzella (No 2) involved a dispute between the plaintiffs, Buono, and the defendants, Mazzella. The dispute originated from a failed joint venture between the parties. The matter was brought before the Federal Court of Australia, which was required to determine the issue of indemnity costs, particularly in relation to the rejection of a Calderbank offer.

The primary legal issue before the court was whether the rejection of a Calderbank offer was reasonable. A Calderbank offer is a form of settlement offer made by a party to another party without a promise that it will not be disclosed to the court if the offer is rejected. The court had to assess whether the rejection of such an offer by the plaintiffs was justified, and if the defendants were entitled to indemnity costs as a result of this rejection.

The court held that the rejection of the Calderbank offer was unreasonable. The reasoning behind this decision was that the offer was made in good faith and represented a genuine attempt at settlement. The court found that the plaintiffs had no reasonable basis for rejecting the offer, which resulted in additional costs being incurred. As a result, the court ruled that the defendants were entitled to indemnity costs for the expenses incurred due to the unreasonable rejection of the Calderbank offer.

The final orders of the court were that the defendants, Mazzella, were to be awarded indemnity costs for the expenses incurred due to the unreasonable rejection of the Calderbank offer made by the plaintiffs, Buono. This decision highlighted the importance of considering Calderbank offers in good faith and the potential consequences of their unreasonable rejection.

Orders