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Lahoud v Lahoud

Lahoud v Lahoud

Case [2012] NSWSC 284 27 March 2012

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Supreme Court

New South Wales

Case Title: Lahoud v Lahoud

Medium Neutral Citation: [2012] NSWSC 284

Hearing Date(s): 9 March 2012

Decision Date: 27 March 2012

Jurisdiction: Equity Division

Before:
Ward J

Decision:
Costs orders to follow the event

Catchwords:
COSTS - offer of compromise - Calderbank offers - whether unreasonable for offeree to reject Calderbank offers - long history of disputation between parties - whether there was an element of real and genuine compromise in both offers - where first offer subject to set off against costs orders owed by offeree to offeror and did not include provision for interest - where second offer subject to set off against a fixed costs assessment in favour of offeree which was being appealed by offeree - uncertainty in the operation of the proposed set-off against costs orders - whether public policy principles underlying Calderbank offers supports finding that failure to accept offer unreasonable - HELD - not unreasonable for the offeree not to accept either offer

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Anderson Group Pty Ltd v Tynan Motors Pty Ltd (No 2) [2006] NSWCA 120; 67 NSWLR 706
Australian Beverage Distributors v Evans & Tate Premium Wines Pty Ltd [2006] NSWSC 560
Barecall Pty Ltd v Hoban [2010] NSWCA 219
Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd (Formerly GIO Insurance Ltd) [2006] NSWSC 583
Baulderstone Hornibrook Engineering Pty Limited v Gordian Runoff Limited (No 2), [2009] NSWCA 12
Bennette v Cohen (No 2) [2009] NSWCA 162
Commonwealth v Gretton [2008] NSWCA 117
Danidale Pty Ltd v Abigroup Contractors Pty Ltd (No. 2) [2007] VSC 552
Dodds v Premier Sports Australia Pty Ltd (No.2) [2004] NSWSC 389
Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322
Elphick v Elliot [2003] 1 Qd R 362
Evans Shire Council v Richardson (No 2) [2006] NSWCA 61
Evans of Robb Evans & Associates v European Bank Ltd (No 2) [2009] NSWCA 170
Gertig v Davis (2003) SASR 226
Gorman v Carter [1998] EWCA Civ 1038
Hancock v Arnold; Dodd v Arnold (No 2) [2009] NSWCA 19
Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] VSCA 298; 13 VR 435
Herning v GWS Machinery Pty Ltd (No 2) [2005] NSWCA 375
Hobartville Stud Pty Ltd v Union Insurance Co Ltd (1991) 25 NSWLR 358
Klein v Jeffcoat [1996] EWCA Civ 686
Lahoud v Lahoud [2006] NSWSC 126
Lahoud v Lahoud [2011] NSWSC 994
Lahoud v Lahoud [2011] NSWSC 1186
Lahoud v Lahoud [2011] NSWCA 405
Leichhardt Municipal Council v Green [2004] NSWCA 341
Lockley v National Blood Transfusion Service [1992] 1 WLR 492
M T Associates Pty Ltd v Aqua-Max Pty Ltd [2000] VSC 163
Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721
Miller v DPP (No.2) [2004] NSWCA 249
Miwa Pty Ltd v Siantan Properties Pty Ltd (No 2) [2011] NSWCA 344
R (On the Application of Bateman) v Legal Services Commission [2001] EWHC…

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 Lahoud v Lahoud

Details

AGLC: Lahoud v Lahoud [2012] NSWSC 284
Case: [2012] NSWSC 284
Decision Date: 27 March 2012

CaseChat Overview and Summary

The case of Lahoud v Lahoud involved a complex dispute between the parties, which was considered by the court. The primary focus was on the issue of costs, specifically whether it was unreasonable for the respondent to reject two Calderbank offers made by the appellant. Both offers were made in the context of a long-standing dispute between the parties, with an offeree who had been ordered to pay costs to the offeror and a second offer that was intended to be set off against a fixed costs assessment in favour of the offeree, which was being appealed by the offeree.

The court was required to determine whether there was an element of real and genuine compromise in both offers, considering factors such as the first offer being subject to set off against costs orders owed by the respondent to the appellant and not including a provision for interest, and the uncertainty in the operation of the proposed set-off against costs orders in the second offer. Additionally, the court needed to decide whether the public policy principles underlying Calderbank offers supported a finding that the failure to accept the offers was unreasonable.

The court found that it was not unreasonable for the respondent to reject either offer. The court considered the nature of the offers, the history of the dispute between the parties, and the potential for prejudice to the offeree if the offers were accepted. The court held that the public policy principles underlying Calderbank offers did not necessarily require a finding that the failure to accept the offers was unreasonable. The court concluded that the respondent's decision to reject the offers was not unreasonable, given the specific circumstances of the case.

The court did not make any specific orders regarding costs, as the primary focus of the decision was on the reasonableness of the respondent's decision to reject the Calderbank offers. The court's decision provides guidance on the factors that should be considered when determining whether it is reasonable for a party to reject a Calderbank offer, particularly in cases where there is a history of disputation between the parties and uncertainty in the operation of the proposed set-off against costs orders.

Orders