The court orders: (a) The first Plaintiff is to pay the Defendants’ costs and disbursements of the proceedings, calculated on the indemnity basis, from 13 August 2013. (Costs orders made prior to this order are not to form part of the costs order as they are not vacated by this order). (b) The first Plaintiff is to pay the Defendants’ costs and disbursements incurred prior to 13 August 2013, calculated on the ordinary basis. (Costs orders made prior to this order are not to form part of the costs order as they are not vacated by this order). (c) The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 rule 31.16A and rule 33.10, and Practice Note SC Gen 18 (Para 26).
Catchwords:
COSTS – Where proceedings dismissed – Where Defendants made Calderbank Offer when only one Plaintiff and then, prior to the final hearing, made a “walk away” offer by way of Offer of Compromise addressed to both Plaintiffs – Where first Plaintiff continued part of proceedings and where second Plaintiff joined as party and continued those proceedings – Whether first Plaintiff acted unreasonably in rejecting Calderbank Offer – Whether Offer of Compromise valid – Said not to be genuine compromise – If a genuine compromise, whether court should “otherwise order”
G E Dal Pont, Law of Costs (3rd ed 2013, LexisNexis).
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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AGLC
Evans v Braddock (No 2) [2015] NSWSC 518
Case
[2015] NSWSC 518
Decision Date
CaseChat Overview and Summary
In the case of Evans v Braddock (No 2), the dispute arose from a claim made by two plaintiffs against the defendant for damages related to breaches of statutory duty, negligence, and breach of contract. The matter was heard in the Supreme Court of New South Wales. The plaintiffs, initially one in number, sought compensation for harm suffered due to the defendant's actions, which were alleged to have occurred over several years. The defendant contested the claims, leading to a series of legal proceedings. The case reached a critical juncture when the defendant made a Calderbank Offer to the first plaintiff and later a "walk away" offer to both plaintiffs. The first plaintiff rejected both offers and continued with the proceedings, while the second plaintiff joined the case and also pursued their claims.
The court was tasked with determining whether the first plaintiff acted unreasonably in rejecting the Calderbank Offer. Additionally, the court had to assess whether the "walk away" offer constituted a genuine Offer of Compromise under the relevant legislation. A critical issue was whether the offer could be considered a genuine compromise despite being made after the second plaintiff had joined the proceedings. The court also needed to decide if the offer was genuinely made for the purpose of resolving the dispute and whether the court should otherwise order costs in light of the offer.
The court found that the first plaintiff did not act unreasonably in rejecting the Calderbank Offer, as the offer did not address all the plaintiffs' claims and was not made in good faith. Regarding the "walk away" offer, the court concluded that it was not a genuine compromise because it was made after the second plaintiff had joined the proceedings and did not address the claims of both plaintiffs comprehensively. Consequently, the court determined that the offer was not valid under the applicable provisions. The court did not find it necessary to make an order regarding costs, given the nature of the offers and the subsequent conduct of the parties.
No specific orders regarding costs were made by the court, as it found that the offers did not meet the criteria for a genuine compromise. The proceedings continued, with the plaintiffs pursuing their claims against the defendant.