Giuseppe Bonifacio v NSW Trustee and Guardian acting as executor of the Estate of the late Adam Frank Woitala (No.2)

The appeal before the court concerned a dispute between Giuseppe Bonifacio and the NSW Trustee and Guardian, acting as executor of the estate of Adam Frank Woitala. The plaintiffs sought indemnity costs for a previous proceeding, which the executors had refused to pay. The case was heard by the Supreme Court of New South Wales. The plaintiffs argued that the executors were unreasonable in not accepting their Calderbank offer, which would have resolved the dispute. The executors contended that the offer was unreasonable and that the plaintiffs were not entitled to indemnity costs.

The primary issue before the court was whether the plaintiffs were unreasonable in not accepting the executors' Calderbank offer. The court considered whether the plaintiffs' decision not to accept the offer was justifiable, given the circumstances of the case. The court examined the terms of the offer and the context in which it was made, including the stage of the proceedings and the prospects of success for both parties. The court also considered the implications of the executors' refusal to accept the offer, particularly in terms of the costs incurred by the plaintiffs.

The court found that the plaintiffs were not unreasonable in not accepting the executors' Calderbank offer. The offer did not adequately address the plaintiffs' claims and was therefore not a reasonable basis for settlement. The court held that the executors' refusal to accept the offer was unreasonable, and that the plaintiffs were entitled to indemnity costs. The court emphasised the importance of parties considering all reasonable offers in the course of litigation and the potential consequences of refusing such offers without justification.

The court ordered that the executors pay the plaintiffs' costs of the appeal, including indemnity costs. The court also noted that the executors' conduct in refusing the Calderbank offer was unreasonable and could have been avoided if they had engaged more constructively with the plaintiffs. The court's decision reinforces the principle that parties should approach settlement offers with an open mind and consider all reasonable options to resolve disputes efficiently and cost-effectively.