Nibbe v Wong (No 2) - [2025] NSWSC 814

Supreme Court

New South Wales

Medium Neutral Citation: Nibbe v Wong (No 2) [2025] NSWSC 814
Hearing dates: On the papers
Date of orders: 24 July 2025
Decision date: 24 July 2025
Jurisdiction: Equity
Before: Hmelnitsky J
Decision:
Dismiss the defendant’s application for a special costs order

Catchwords:
COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers — Where plaintiff’s summons dismissed with costs in principal judgment — Where defendant had previously written to plaintiff encouraging them to discontinue proceedings — Where defendant had rejected plaintiff’s subsequent offer — Whether plaintiff should now be ordered to pay defendant’s indemnity costs

Legislation Cited:
Civil Procedure Act 2005 (NSW) s 56
Uniform Civil Procedure Rules 2005 (NSW) rr 20.26,
42.14, 42.15 and 42.15A

Cases Cited:
Calderbank v Calderbank [1976] Fam 93
Elite Protective Personnel Pty Ltd & Anor v Salmon [2007] NSWCA 322
Nibbe v Wong [2025] NSWSC 685

Texts Cited:
Nil

Category: Costs
Parties: Hasso Nibbe (Plaintiff)
Christine Mei Lee Wong in her capacity as executor of the estate of the late Elvina Mei Yi Wong (Defendant)
Representation:
Counsel:
D Parish (Plaintiff)
M Pringle (Defendant)
Solicitors:
Lion Legal (Plaintiff)
Vision Legal (Defendant)

File Number(s): 2024/95999
Publication restriction: Nil

JUDGMENT

I delivered judgment in this matter on 30 June 2025: Nibbe v Wong [2025] NSWSC 685 (‘J’). I ordered that the plaintiff’s application for a family provision order out of the notional estate of his former partner be dismissed with costs.
On 7 July 2025, the defendant made an application for a variation of the costs order made by me on 30 June. She seeks an order pursuant to r 42.15A of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’) that the plaintiff be ordered to pay her costs on the ordinary basis until 12 April 2024 and on the indemnity basis thereafter. In the alternative, she seeks an order that the plaintiff be ordered to pay her costs on the ordinary basis until 8 November 2024 and on the indemnity basis thereafter.

Primary order

In support of the primary order now sought, the defendant relies on a letter dated 12 April 2024 from her solicitor to the plaintiff’s solicitor. The letter pointed out some of the difficulties faced by Mr Nibbe in seeking to bring his claim out of time. It said that Mr Nibbe’s claim would face ‘an uphill battle and will fail on numerous grounds’. The letter invited Mr Nibbe to withdraw his application with no order as to costs by 3pm on 16 April 2024. Although it was not said to be ‘without prejudice save as to costs’, the letter said that if the defendant ‘is required to defend your clients [sic] claim and is successful in doing so, we will use this letter on the issue of indemnity costs’.
Mr Nibbe points out that from the time the 12 April 2024 letter was sent and indeed until 24 May 2024, being over a month after the offer had…

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 Nibbe v Wong (No 2)

Details

AGLC: Nibbe v Wong (No 2) [2025] NSWSC 814
Case: [2025] NSWSC 814
Decision Date: 24 July 2025

CaseChat Overview and Summary

In Nibbe v Wong (No 2), the plaintiff sought to enforce a financial agreement against the defendant. The matter was before the Federal Circuit Court, where the plaintiff's summons was dismissed with costs in principal. The primary dispute centred on the enforceability of the financial agreement and the costs associated with the proceedings. The defendant had previously written to the plaintiff, encouraging them to discontinue the proceedings. Additionally, the defendant rejected a subsequent offer from the plaintiff.

The court was required to determine whether the plaintiff should be ordered to pay the defendant's indemnity costs, given that the summons was dismissed with costs in principal. The court considered the principles surrounding Calderbank offers and exceptions to the general rule that costs follow the event. The court examined whether the plaintiff's conduct warranted an order for indemnity costs, despite the summons being dismissed in their favour. The court also considered the defendant's previous correspondence and rejection of the plaintiff's offer.

The court concluded that the plaintiff's conduct did not justify an order for indemnity costs. Despite the summons being dismissed with costs in principal, the court found that the plaintiff's actions did not warrant such an exceptional order. The court emphasised the importance of considering all relevant factors and the need for proportionality in determining costs orders. The court ultimately dismissed the defendant's application for indemnity costs, maintaining the costs order in favour of the plaintiff.

Orders