Chitts v Hamied (No. 2)

The case of Chitts v Hamied (No. 2) was before the court, involving a dispute concerning costs. The plaintiff, Chitts, sought an order for the defendant, Hamied, to pay the costs of and incidental to the Notice of Motion. The primary issue before the court was whether the defendant's letter to the plaintiff, dated 10 November 2017, constituted a Calderbank offer. This determination was crucial as it would impact the assessment of costs under the 'indulgence principle' and whether the defendant's conduct could be considered disentitling behaviour.

The court considered the nature of the letter and its context, ultimately concluding that the letter did not constitute a Calderbank offer. The 'indulgence principle', which permits a court to disregard disentitling behaviour when assessing costs, was relevant here. The court needed to decide if the defendant's actions warranted the application of this principle. The court found that the letter was a genuine attempt to resolve the dispute and did not amount to disentitling behaviour. Consequently, the 'indulgence principle' did not apply, and the plaintiff was not entitled to the costs sought.

In reaching its decision, the court examined the content and timing of the letter, as well as the conduct of the parties throughout the proceedings. The court determined that the letter was not made in bad faith and did not represent an attempt to delay or obstruct the proceedings. The defendant's conduct was deemed reasonable and in line with the pursuit of a genuine settlement. Therefore, the court dismissed the plaintiff's application for costs.

The final orders of the court were that the applicant, the defendant, was to pay the costs of and incidental to the Notice of Motion. This decision underscores the importance of understanding the nuances of Calderbank offers and the application of the 'indulgence principle' in cost assessments.