Camuglia v Housman and Ors (2)

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…