Kursun v Gareffa (No 2)

The case of Kursun v Gareffa (No 2) involves an application for costs between the parties, following a dispute resolved by the New South Wales Civil and Administrative Tribunal (NCAT). The central issue was the application of discretion in determining costs under Rule 38 of the NCAT Rules and section 60 of the NCAT Act, given that each party had achieved partial success. A further consideration was the effect of the respondent's Calderbank letters, which proposed a settlement offer that was not accepted, and whether this should influence the assessment of costs.

The court examined the principles guiding the exercise of discretion in awarding costs, particularly in cases where each party has achieved some measure of success. The Calderbank letters were reviewed to assess whether they warranted a departure from the usual approach to costs, considering the impact of such offers on the proceedings. The court recognised that the Calderbank offer, while not accepted, might still influence the assessment of costs due to its timing and content. Ultimately, the court determined that the most equitable outcome was for each party to bear their own costs, reflecting the partial success achieved by both parties.

In reaching this decision, the court balanced the need for a just and equitable outcome against the principle of each party bearing their own costs. The court concluded that a costs order favouring one party over the other would not be appropriate, given the circumstances of partial success and the presence of Calderbank letters. The decision underscores the importance of discretion in cost orders, particularly in complex cases with multiple outcomes.

No specific orders as to costs were made, with the intent that each party is to bear their own costs of and incidental to the proceedings. This decision highlights the careful consideration required in cost orders, particularly in cases involving partial success and settlement offers.