Supreme Court
New South Wales
Medium Neutral Citation: Gambacorta v Di Giovanni (No 2) [2021] NSWSC 803 Hearing dates: On the papers Date of orders: 1 July 2021 Decision date: 01 July 2021 Jurisdiction: Equity Before: Robb J Decision: See pars [12], [48], [55], [57] and [58].
Catchwords: COSTS — Party/Party — General rule that costs follow the event — Where plaintiff sought an order that the defendant pay the plaintiff’s costs on the indemnity basis — Where defendant sought orders that the costs for both the plaintiff and defendant be paid out of the deceased’s estate on the indemnity basis in reliance on the principle in Re Buckton (that is, that the proceedings arose out of the fault of the deceased in leaving her affairs in a state of confusion) — Where the Court found that the deceased did not leave her affairs in a state of confusion — Where the plaintiff relied on a Calderbank offer — Where the Court found that the offer was not an effective Calderbank offer as there was no real element of compromise — Where the Court ordered that the defendant pay the plaintiff’s costs on the ordinary basis from the time of service of the summons and the plaintiff’s affidavits in support, but otherwise that there be no orders for costs on the basis that the parties will pay their own costs
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Gambacorta v Di Giovanni [2021] NSWSC 61
Hazeldene’s Chicken Farm Pty Ltd v Victorian Work Cover Authority (No 2) (2005) 13 VR 435
Leichhardt Municipal Council v Green [2004] NSWCA 341
Re Buckton; Buckton v Buckton [1907] 2 Ch 406
Re Estate of Hodges; Shorter v Hodges (1988) 14 NSWLR 698
Category: Costs Parties: Caterina Gambacorta (plaintiff)
Giuliano Di Giovanni (defendant)Representation: Counsel:
Solicitors:
C Stomo (plaintiff)
J Thomson (defendant)
Team Legal Group (plaintiff)
Calabrese Lawyers (defendant)
File Number(s): 2018/60480
Judgment
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The primary judgment in these proceedings was published on 9 February 2021: Gambacorta v Di Giovanni [2021] NSWSC 61.
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The parties were required to confer and submit short minutes of order to give effect to the reasons in the primary judgment. Directions were made for the service of submissions on the issue of the orders to be made, including as to the costs of the proceedings.
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These reasons will assume knowledge of the primary judgment. Without meaning any disrespect, I will also refer to the parties and the other persons involved by their first names.
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Giuliano delivered written submissions on 13 May 2021 and Caterina responded on 17 May 2021. Giuliano provided a reply on 25 May 2021. Both parties supplied a bundle of correspondence. The outstanding issues are to be decided on the papers.
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There was a substantial measure of agreement between the parties concerning the substantive orders that should be made to give effect to the primary judgment. Where there are small drafting…
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- Case
- [2021] NSWSC 803
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the deceased left her affairs in a state of confusion and whether the Calderbank offer constituted an effective compromise. The court examined the evidence and found that the deceased did not leave her affairs in a state of confusion. Furthermore, the court determined that the Calderbank offer was not an effective compromise because it lacked a genuine element of compromise. The court needed to decide the appropriate basis for awarding costs in light of these findings.
The court held that the defendant should pay the plaintiff's costs on the ordinary basis from the time of service of the summons and the plaintiff's affidavits in support. However, the court decided that there should be no further orders for costs, as the parties would bear their own costs. This decision was based on the court's findings that the deceased's affairs were not in a state of confusion and that the Calderbank offer did not amount to an effective compromise. The court's ruling effectively left the parties to bear their own costs, except for the specified period during which the defendant was required to pay the plaintiff's costs on the ordinary basis.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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