Fordyce v Fordham (No 2)

[2006] NSWCA 362

New South Wales

Court of Appeal

CITATION:	Fordyce v Fordham & Anor (No 2) [2006] NSWCA 362
HEARING DATE(S):	On written submissions.
JUDGMENT DATE:	15 December 2006
JUDGMENT OF:	Beazley JA at 1; Santow JA at 2; McColl JA at 3
DECISION:	Application dismissed with costs.
CATCHWORDS:	PRACTICE AND PROCEDURE - costs - unaccepted Calderbank offer - whether should displace order that each party pay their own costs - HELD - no. (ND)
LEGISLATION CITED:	District Court Rules 1973 Uniform Civil Procedure Rules 2005
CASES CITED:	Calderbank v Calderbank [1976] Fam 93 Fordyce v Fordham & Anor [2006] NSWCA 274 Jones v Bradley ( No 2) NSWCA 258 Leichhardt Municipal Council v Green [2004] NSWCA 341 SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323 South Eastern Sydney Area Health Service v King [2006] NSWCA 2
PARTIES:	Louise Aileen Fordyce - Claimant Gary Shaun Fordham - 1st Opponent Narelle Jane Fordham - 2nd Opponent
FILE NUMBER(S):	CA 40044 of 2006
COUNSEL:	M Holmes QC and C Bova - Claimant J Simpkins SC and J Johnson - Opponents
SOLICITORS:	PMF Legal - Claimant Woolf Associates - Opponents
LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	4290/05
LOWER COURT JUDICIAL OFFICER:	Nicholas J
LOWER COURT DATE OF DECISION:	22 December 2005

CA 40044/06
SC 4290/05

BEAZLEY JA
SANTOW JA
McCOLL JA

Friday 15 December 2006

FORDYCE v FORDHAM & ANOR (No 2)

Judgment

1 BEAZLEY JA: I agree with McColl JA.

2 SANTOW JA: I agree with McColl JA

3 McCOLL JA: The Court delivered judgment in this matter on 5 October 2006. The appeal was allowed and the orders made by Nicholas J on 22 December 2005 that the appellant pay the costs of proceedings brought in the Equity Division of this Court by the respondents was set aside. In lieu the Court ordered that each party pay their own costs of the Supreme Court proceedings as well as their costs of appeal: Fordyce v Fordham & Anor [2006] NSWCA 274 (the “first judgment”).

4 At the conclusion of the argument Mr Simpkins of Senior Counsel, who appeared with Mr J Johnson for the respondents, raised the question that, if the appeal was upheld and this Court re-exercised the costs discretion, it should not make an order concerning the costs of the argument before the primary judge on 23 November 2005 as the outcome of that day may be affected by correspondence. While the Court indicated its view that its costs should apply to the costs of 23 November 2005 the parties were given leave to file and serve written submissions limited to two pages concerning the costs of that day.

5 The parties have exercised that leave. This judgment deals with the resolution of the respondents’ claim that the appellant should be ordered to pay their costs of 23 November 2005 on the basis that she had unreasonably rejected a Calderbank offer communicated by Mr Woolf, the respondents’ solicitor on 6 September 2005.