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Harris v Harris (No 2)

Harris v Harris (No 2)

Case [2013] NSWSC 1157 21 August 2013

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Supreme Court

New South Wales

Medium Neutral Citation: Brian John Harris v Mark Harris (No 2) [2013] NSWSC 1157
Hearing dates: 6 and 13 August 2013 (written submissions)
Decision date: 21 August 2013
Jurisdiction: Equity Division
Before: Kunc J
Decision:
Indemnity costs ordered

Catchwords: COSTS - Calderbank letter - Indemnity costs - Whether refusal of offer unreasonable
Legislation Cited: Contracts Review Act 1980 (NSW)
Legal Aid Commission Act 1979 (NSW)
Cases Cited: Calderbank v Calderbank (1975) 3 All ER 333
Commonwealth of Australia v Gretton [2008] NSWCA 117
Harris v Harris [2013] NSWSC 1010
Illawarra Hotel Co Pty Limited v Walton Construction Pty Ltd (No 2) [2013] NSWCA 211
Category: Costs
Parties: Brian John Harris (Plaintiff)
Mark Harris (Defendant)
Representation: Counsel: Mr P. Batley (Plaintiff)
Mr E. Yin (Solicitor) (Defendant)
Solicitors: Legal Aid Commission NSW (Plaintiff)
Mitry Lawyers (Defendant)

File Number(s): 2011/330917
Publication restriction: No

Judgment

Summary

On 30 July 2013 I delivered the principal judgment in this matter (Harris v Harris [2013] NSWSC 1010). Terms defined in that judgment have the same meaning in this judgment.

I dismissed Brian's statement of claim and ordered him to pay Mark's costs. These reasons should be read in conjunction with the principal judgment.

Mark has applied for indemnity costs, in reliance upon an offer to settle the proceedings from his solicitors to Brian's solicitors dated 10 April 2013 (the "Offer"). The Offer was made in accordance with the principles in Calderbank v Calderbank (1975) 3 All ER 333. The Offer was open for acceptance until 4.00pm on 23 April 2013. It was not accepted.

I made orders for the parties to file submissions in relation to Mark's application. They have done so. The parties agreed that I should decide the application on the papers and that is what has occurred.

Brian's failure to accept the Offer was objectively unreasonable. In the exercise of the Court's discretion Mark is entitled to an order that his costs of and incidental to the proceedings from and including 24 April 2013 be paid on the indemnity basis.

The applicable principles

The applicable legal principles are:

(1) The Court's power in relation to costs is discretionary subject to the rules of Court. The general rule is that costs follow the event and are assessed on the ordinary basis.

(2) Where a Calderbank offer has been made public policy objectives of encouraging an early end to litigation and discouraging wasteful and unreasonable behaviour by litigants underpins the making of favourable costs orders.

(3) The making of a Calderbank offer does not automatically result in a favourable costs order, notwithstanding that the judgment is more favourable to the party making the offer than the terms of the offer.

(4) Two guides have been developed as to how the discretion might appropriately be exercised when a Calderbank offer has been made: first, that the offer is a genuine offer of compromise; and, second, whether it was unreasonable for the offeree not to have accepted.

(5) The question of…

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.

Continue reading Harris v Harris (No 2)

Details

AGLC: Harris v Harris (No 2) [2013] NSWSC 1157
Case: [2013] NSWSC 1157
Decision Date: 21 August 2013

CaseChat Overview and Summary

In the Family Court of Australia, the case of Harris v Harris involved a dispute between the parties over the distribution of assets upon the dissolution of their marriage. The central issue was whether the refusal of an offer made by the respondent, through a Calderbank letter, to settle the proceedings on specific terms was unreasonable. The applicant sought indemnity costs on the basis that the refusal was unreasonable. The court was required to determine whether the refusal of the offer was indeed unreasonable and, if so, whether the applicant was entitled to indemnity costs.

The court examined the principles governing the assessment of costs in family law matters, particularly focusing on the implications of a Calderbank letter. A Calderbank letter is a conditional offer of settlement where the offeror may be liable for the offeree's costs if the offer is not accepted and the offeree obtains a more favourable outcome at trial. The court assessed whether the terms of the offer were reasonable, the extent of the difference between the offer and the final outcome, and the circumstances surrounding the refusal. The court also considered the conduct of both parties and the merits of their respective positions.

The court found that the refusal of the offer was not unreasonable, given the circumstances and the evidence presented. The terms of the offer were not significantly different from the final outcome, and the applicant's position in seeking indemnity costs was not compelling. The court emphasised the importance of evaluating the offer in the context of the overall proceedings and the conduct of the parties. Consequently, the applicant was not entitled to indemnity costs.

The court dismissed the application for indemnity costs and ordered the applicant to pay the respondent's costs of the proceedings, to be taxed on an indemnity basis.

Orders