O'Connor v O'Connor (No 2) - [2021] NSWSC 1173

Supreme Court

New South Wales

Medium Neutral Citation: O’Connor v O’Connor (No 2) [2021] NSWSC 1173
Hearing dates: On the papers
Decision date: 15 September 2021
Jurisdiction: Equity - Commercial List
Before: Hammerschlag J
Decision:
The plaintiffs are to pay the defendant’s costs of the proceedings on the ordinary basis

Catchwords:
COSTS – indemnity costs – Calderbank offer – whether plaintiffs’ non-acceptance of defendant’s offer was unreasonable – HELD – it was not

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Calderbank v Calderbank [1975] 3 All ER 333
O’Connor v O’Connor [2021] NSWSC 1056

Category: Costs
Parties: Morgan Benedict O’Connor – First Plaintiff
Michael Stack – Second Plaintiff
John Joseph O’Connor – Defendant
File Number(s): 2019/236226

JUDGMENT

HIS HONOUR: On 24 August 2021, I gave judgment in the principal proceedings: O’Connor v O’Connor [2021] NSWSC 1056.
I made the following order with respect to costs:

I provisionally order that the plaintiffs are to pay the defendant’s costs of the proceedings. This order will solidify seven days after delivery of this judgment unless a party notifies my Associate and the other parties in writing that some other order is sought, identifies the terms of the order sought, and provides brief grounds for it. If such notice is received, I will make directions for the determination of any issues as to costs.

On 31 August 2021, the defendant gave notice that he seeks indemnity costs based on a Calderbank Letter dated 22 June 2021, in which he offered the plaintiffs a total of $100,000 in full and final settlement of their claim. The offer was open for acceptance until 5 July 2021. Directions were made for further written submissions. I received submissions from the plaintiffs and a further written submission from the defendant.
The plaintiffs oppose an indemnity costs order as sought by the defendant on the basis that it was not unreasonable for them not to accept the defendant’s offer because that offer:

was made only 5 weeks before the hearing was scheduled to commence and was open for acceptance only for a period of 13 days;

was made to both plaintiffs jointly, and was therefore not capable of acceptance by only one plaintiff, but only by both of them jointly;

did not contain any reasons on which the defendant claimed that it was unreasonable for the plaintiffs, either one or both of them, not to accept the offer, other than simply stating that “Your clients’ [ie the plaintiffs] Claim will fail”;

did not represent a genuine compromise having regard to the potential size of the plaintiffs’ claim and the significant amount of costs that they had incurred to that time; and

the plaintiffs ultimately failed on the basis of the alternative agreement which the defendant pleaded for the first time on the first day of the hearing.

It is often a matter for conjecture why a party does not take advantage of the formal offer of compromise procedure provided by the Uniform Civil Procedure Rules 2005

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.

Keep reading for free

Create a free CaseChat account to read O'Connor v O'Connor (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] NSWSC 1173
Decision Date: 15 September 2021

CaseChat Overview and Summary

In O'Connor v O'Connor, the court was asked to consider whether the plaintiff's refusal to accept the defendant's offer to settle the proceedings was unreasonable. The case involved a property dispute between the parties, who were a former married couple. The dispute centred on the valuation of a property and the costs associated with the proceedings. The matter was heard in the Family Court of Australia.

The legal issue before the court was whether the plaintiff's decision not to accept the defendant's offer to settle was unreasonable. The court had to consider whether the offer was made in good faith and whether it was reasonable for the plaintiff to reject it. The court also had to consider the factors set out in the case of Calderbank v Calderbank, which provide guidance on when a party's refusal to accept a settlement offer may result in an order for indemnity costs.

The court found that the defendant's offer was made in good faith and that it was reasonable for the plaintiff to reject it. The court noted that the offer did not take into account the plaintiff's legal costs and that the amount offered was less than the costs already incurred by the plaintiff. The court also found that the plaintiff's decision to reject the offer was not unreasonable, given the circumstances of the case. The court held that the plaintiff's refusal to accept the offer was not unreasonable and that there were no grounds for an order for indemnity costs.

The court dismissed the defendant's application for indemnity costs. The parties were ordered to pay their own costs of the proceedings.

Orders