Marcello Capone and Nicole Masson v Richard Lambert

Marcello Capone and Nicole Masson brought a proceeding against Richard Lambert, seeking relief in relation to certain property transactions. The case was heard and determined by the Supreme Court of Victoria. The central dispute in this case was the entitlement of the plaintiffs to costs, particularly in light of the bankruptcy of one of the parties, Richard Lambert, and the offers made under Calderbank.

The legal issues before the court included the assessment of costs where one party had become bankrupt and the appropriateness of making a Calderbank offer, which is an offer to settle on terms that if the offer is not accepted and the offeror is ultimately unsuccessful, the offeror will pay the costs of the proceeding from the time the offer was made. The court had to consider whether the bankruptcy of Lambert affected the costs order and whether the Calderbank offer had any bearing on the costs that could be awarded.

The court found that the bankruptcy of Lambert did not absolve him of his liability for costs. The court held that the costs incurred before the bankruptcy were to be paid on a party and party basis, while the costs incurred after the bankruptcy were to be paid on an indemnity basis. The Calderbank offer made by Lambert was not accepted by the plaintiffs and thus did not affect the terms of the costs order. The court determined that Lambert should pay the plaintiffs their costs from the commencement of the proceeding up until the date of bankruptcy on a party and party basis, and from the date of bankruptcy onwards on an indemnity basis.

The final orders of the court required Lambert to pay the plaintiffs their costs of and incidental to the proceedings. These costs were to be paid up to and including 1 November 2014 on a party and party basis, and from 2 November 2014 onwards on an indemnity basis. The court also stipulated that any costs not agreed upon were to be assessed according to the specified provisions of the relevant legislation.