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

1. 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.

2. 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

3. 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’.

4. 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 expired, the defendant had refused to show him the deceased’s will despite his repeated requests to see it. He submits that even if the letter is taken to invoke the principles in Calderbank v Calderbank [1976] Fam 93, it was not unreasonable of Mr Nibbe to reject it because, without knowing what the will said, he did not have an adequate opportunity to consider and deal with the offer. He referred me to Elite Protective Personnel Pty Ltd & Anor v Salmon [2007] NSWCA 322 at [99].

5. I accept Mr Nibbe’s submission. Although he failed on what at J[2] I described as three threshold issues, it was reasonable of Mr Nibbe to ask to see the will before forming a final view about the likelihood that his claim would succeed. That is because the power he was asking the Court to exercise is one which must be exercised having regard to, among other things, the testamentary wishes of the deceased where they are known. The existence of the will was likely to inform the merit of his claim, which is a matter relevant to the exercise of the power to extend time. The position Mr Nibbe was in when her received the 12 April 2024 letter was that he knew the deceased had made a will, that he had some or other entitlement under it (having been transferred shares and cash from the deceased’s estate), but that he had nevertheless been refused access to it even after proceedings had been commenced.

6. The 12 April 2024 letter invited Mr Nibbe to abandon his case altogether. The unreasonable failure to discontinue proceedings in response to such a letter can be a basis to make an indemnity costs order. However, I do not think it was reasonable to expect Mr Nibbe to abandon his case at that early stage in circumstances where his perfectly reasonable request to see the will was being refused.

Alternative order

7. The inspiration for the alternative order sought by the defendant is the fact that Mr Nibbe served an offer of compromise in accordance with UCPR r 20.26 on 8 November 2024. His offer was for a lump sum of $210,000 from the notional estate with interest, with no order as to costs.

8. The defendant submits that ‘it was reasonable for the Defendant to reject [Mr Nibbe’s] offer of to accept $210,000 in settlement of his claim’ and that the Court should therefore order Mr Nibbe to pay costs on the indemnity basis from the date of his offer of compromise.

9. It was perfectly reasonable for the defendant to reject Mr Nibbe’s offer, but what of it? The consequences of failing to accept an offer of compromise are dealt with in UCPR rr 42.14 to 42.15A. Unsurprisingly, those rules do not specify any consequence for a defendant who fails to accept an offer of compromise by a plaintiff and where the plaintiff obtains an order or judgment that is less favourable than the terms of the offer. Nor is there any general law principle that a party who reasonably refuses to accept an offer of compromise thereby becomes entitled to indemnity costs from the date of the offer. It is hard to think of any reason why the Court would ever make an indemnity costs order on such a basis. If such a principle existed, a plaintiff would be better off making no offer at all rather than an insufficiently generous one, which would hardly be conducive to the just, quick and cheap resolution of litigation: s 56 of the Civil Procedure Act 2005 (NSW).

Orders

10. The defendant’s application for a special costs order is dismissed.

**********

Decision last updated: 24 July 2025