Camuglia v Housman and Ors (2)

[2020] NSWDC 518

District Court

New South Wales

Medium Neutral Citation:

Camuglia v Housman & Ors (2) [2020] NSWDC 518

Hearing dates:

18, 19, 20 June 2020;
16, 17 July 2020
14 August 2020

Date of orders:

10 September 2020

Decision date:

10 September 2020

Jurisdiction:

Civil

Before:

Weber SC DCJ

Decision:

(1)   Judgment and verdict for the plaintiff against the defendants in the sum of $231,316.32.

(2)   That the defendants pay the plaintiff’s costs on an ordinary basis up to and including 7 September 2019, and on a full indemnity basis thereafter.

Catchwords:

CIVIL – Slip rule – Correction of sum in respect of rectification works

COSTS – Indemnity Costs – Calderbank offer

Legislation Cited:

Uniform Civil Procedure Rules 2005

Cases Cited:

Calderbank v Calderbank [1975] 3 All ER 333

Category:

Consequential orders

Parties:

Yolenda Camuglia (Plaintiff)
Bardia Housman (First Defendant)
Beatriz Pena Alda (Second Defendant)
Pacific Plus Constructions Pty Ltd (Third Defendant)

Representation:

Counsel:
Mr G. Sirtes SC, with
Ms G. R. Rubagotti (Plaintiff)
Mr A. Ahmad (Defendants)

Solicitors:
Landerer and Company (Plaintiff)
Holman Webb Lawyers (Defendants)

File Number(s):

2019/102298

Publication restriction:

None

Judgment

Slip Rule

1. On 14 August 2020, I gave judgment in favour of the plaintiff in the sum of $218,601.55.

2. This judgment sum was in fact an error. It was agreed by the parties that the quantum of the rectification works, the subject of the judgment was $74,076.18 rather than $61,361.71 as set forth in the judgment. Accordingly the final judgment sum should be in the sum of $231,316.22.

3. The requirements of r 36.17 of the Uniform Civil Procedure Rules 2005 (the regulatory form of the slip rule) are thus clearly enlivened, and I shall enter judgment in the amended sum.

The Plaintiff’s Costs Application

4. The plaintiff seeks an indemnity costs order on two distinct bases, namely:

1. The failure of the defendants to accept a Calderbank offer made on 23 August 2019; and

2. A series of submissions to the effect that the conduct of the defendants in certain respects was either unreasonable, or unduly prolonged the proceedings.

The Calderbank Offer

5. On 23 August 2019, the plaintiff’s solicitors wrote to the defendants’ solicitors on a “without prejudices save as to costs” basis. By this letter the plaintiff offered to settle the proceedings on the basis that the defendants pay the plaintiff $100,000 in respect of quantum and $100,000 in respect of her costs. The letter was stated to be written pursuant to the principles set forth in Calderbank v Calderbank [1975] 3 All ER 333.

6. The principles underlying the award of indemnity costs consequent upon a Calderbank offer are well known, and I will not repeat them. At their base, they can be summarised as requiring consideration as to:

1. Whether the offer was a genuine offer of compromise; and

2. Whether the rejection of the offer by the defendants was unreasonable.

7. The following factors are relevant considerations in determining whether the rejection of a Calderbank offer was unreasonable:

1. The stage of the proceeding at which the offer was received;

2. The time allowed to the offeree to consider the offer;

3. The extent of the compromise offered;

4. The offeree’s prospects of success, assessed as at the date of the offer;

5. The clarity with which the terms of the offer were expressed; and

6. Whether the offer foreshadowed an application for indemnity costs in the event of the offeree rejecting it.

8. There can be no serious issue about most of these factors. The offer was made after pleadings closed, and the plaintiff had put on her evidence in chief, including the affidavit of Mr Herbertson, a structural engineer upon which she relied.

9. In my view, the extent of the compromise contained in the Calderbank letter was considerable. The offer represented a 78% deduction on the plaintiff’s consequential loss claim. It also represented an offer to meet one third of her legal costs, which at the time of the Calderbank offer amounted to a sum of $150,000.

10. More crucially, the judgment represented an award of more than $131,316 in excess of the Calderbank offer. This represented a substantial compromise, in my view.

11. The defendants made various submissions seeking to justify their decision to not accept the Calderbank offer. Other than to mention two of them, I shall not recount the defendants’ submissions here. The defendants attempt to justify their decision to not accept the offer, insofar as it relates to costs, by stating that the offer was not supported by a bill of costs. They make such submissions notwithstanding that the defendants, in the face of the offer, sought no particulars of the plaintiff’s costs. This contention must be rejected.

12. Similarly, the defendants suggest that the 14 days provided for acceptance was an insufficient time within which to consider it. This contention is difficult to reconcile with the fact that they did not seek more time for consideration of the offer. It should be rejected.

13. I am of the opinion that it was unreasonable of the defendants to have rejected the Calderbank offer, and accordingly it is appropriate that there should be an indemnity costs order, as foreshadowed in the Calderbank letter, from the date upon which the offer contained the letter expired, namely, from 7 September 2019.

14. These findings make it unnecessary to consider the alternate basis upon which the indemnity costs order was sought.

Final orders

1. Judgment and verdict for the plaintiff against the defendants in the sum of $231,316.32.

2. That the defendants pay the plaintiff’s costs on an ordinary basis up to and including 7 September 2019, and on a full indemnity basis thereafter.

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Decision last updated: 10 September 2020