Hunter v Roberts (No 2)

Case [2019] NSWCA 235


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Hunter v Roberts (No 2) [2019] NSWCA 235
Hearing dates: On the papers
Decision date: 24 September 2019
Before: Meagher JA at [1];
Brereton JA at [1];
Simpson AJA at [1].
Decision:

1. Vary order 9 made on 20 May 2019 to read as follows:

 

9. Order that the respondent pay the applicant’s costs of the appeal on the ordinary basis up to and including 24 December 2018, and thereafter, on an indemnity basis.

2. The respondent pay the applicant’s costs of this motion.
Catchwords: COSTS – application for indemnity costs following rejection of Calderbank offer – where offer accompanied by written submissions in the appeal –where applicant’s prospects of success very good – whether respondent acted unreasonably in refusing offer
Legislation Cited: Civil Procedure Act 2005 (NSW), s 3
Legal Profession Uniform Law Application Act 2014 (NSW), Pt 7, Div 3
Motor Accidents Compensation Act 1999 (NSW), s 73
Uniform Civil Procedure Rules 2005 (NSW), rr 36.16, 42.1, 42.2
Cases Cited: Calderbank v Calderbank [1976] Fam 93
Elite Protective Personnel Pty Ltd & Anor v Salmon [2007] NSWCA 322
Karambelas v Zaknic (No 2) [2014] NSWCA 433; (2014) 69 MVR 127
Leichhardt Municipal Council v Green [2004] NSWCA 341
Perisher Blue Pty Ltd v Nair-Smith (No 2) [2015] NSWCA 268
SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323
Category:Costs
Parties: Kelly Hunter (applicant)
Jonathon Roberts (respondent)
Representation:

Counsel:
A Casselden SC / J Malouf (applicant)
I D Roberts SC (respondent)

  Solicitors:
Gerard Malouf & Partners (applicant)
Sparke Helmore Lawyers (respondent)
File Number(s): 2018/242181
Publication restriction: N/A
 Decision under appeal 
Court or tribunal:
District Court
Jurisdiction:
Civil
Date of Decision:
23 March 2018
Before:
Wass SC DCJ
File Number(s):
2016/91722

Judgment

  1. THE COURT: The Court’s judgment of 20 May 2019 allowed the applicant’s appeal from an order of the District Court dismissing, on the ground of delay, her statement of claim in which she sought damages for personal injury suffered in a motor accident (Motor Accidents Compensation Act 1999 (NSW), s 73(5)). In doing so, the Court made the following orders as to costs:

8. Order that the respondent pay the applicant’s costs of [the motion in the District Court].

9. Order that the respondent pay the applicant’s costs of the appeal.

  1. By her notice of motion of 23 May 2019 the applicant seeks an order pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 36.16(1) that order 9 above be varied as follows:

9. Order that the respondent pay the applicant’s costs of the appeal:

i.    on an ordinary basis up until and including 24 December 2018; and

ii.    thereafter, on an indemnity basis.

  1. That application was brought within the 14 days provided by sub-rule (3A), enlivening this Court’s power under r 36.16(1) to vary the earlier costs order.

  2. In support of the proposed variation, the applicant relies on an informal “Calderbank” offer (from Calderbank v Calderbank [1976]…

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AGLC
Hunter v Roberts (No 2) [2019] NSWCA 235
Case
[2019] NSWCA 235
Decision Date

CaseChat Overview and Summary

The parties to this proceeding were the applicant and the respondent. The dispute concerned an application for indemnity costs following the rejection of a Calderbank offer made by the applicant. The matter was heard in the Court of Appeal of New South Wales.

The primary legal issue before the Court of Appeal was whether the respondent had acted unreasonably in refusing the applicant's Calderbank offer, which had been accompanied by written submissions detailing the applicant's very good prospects of success on appeal. This determination was crucial for deciding whether the costs of the appeal should be awarded on an indemnity basis from the date the offer was made.

The Court of Appeal reasoned that the respondent's refusal of the offer was unreasonable in the circumstances. The applicant's prospects of success were assessed as very good, and the offer was made in a manner that clearly articulated the basis for this assessment. Consequently, the Court found that the respondent ought to have accepted the offer, and therefore, the costs of the appeal should be awarded on an indemnity basis from the date the offer was made.

The Court ordered that the order for costs made on 20 May 2019 be varied to provide that the respondent pay the applicant’s costs of the appeal on the ordinary basis up to and including 24 December 2018, and thereafter, on an indemnity basis. The respondent was also ordered to pay the applicant’s costs of the motion.

Orders

Orders of the court

1. Vary order 9 made on 20 May 2019 to read as follows:

9. Order that the respondent pay the applicant’s costs of the appeal on the ordinary basis up to and including 24 December 2018, and thereafter, on an indemnity basis.

2. The respondent pay the applicant’s costs of this motion.

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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