Richard Austin Ell v Stephen Maxwell Ell and Michael Richard Ell (No 2)

The case involved Richard Austin Ell suing his brothers, Stephen Maxwell Ell and Michael Richard Ell, over matters related to a family trust and a property dispute. The case was heard in the Supreme Court of New South Wales. The primary issue before the court was whether a Calderbank offer made by the plaintiff constituted a genuine compromise and thus affected the costs order.

The court considered whether the offer made by the plaintiff was a genuine attempt to resolve the dispute without proceeding to trial. This was important as it would determine the costs order under the ordinary basis, rather than on the indemnity basis. The court examined the timing, content, and circumstances surrounding the offer to ascertain its genuineness. It was noted that the offer was made after the defendants had filed a defence and counterclaim, and the plaintiff had already incurred significant legal costs.

The court concluded that the Calderbank offer did not represent a genuine compromise. The offer was made at a late stage in the proceedings, after the plaintiff had already incurred substantial costs, and it was conditional on the defendants dropping their counterclaim. The court found that these factors indicated that the offer was not made in good faith. Consequently, the court awarded costs to the defendants on the ordinary basis, reflecting the genuineness of the compromise offer.

The final orders of the court mandated that the plaintiff pay the defendants' costs on the ordinary basis, acknowledging that the Calderbank offer did not embody a genuine compromise. This decision underscored the importance of the timing and conditions of a compromise offer in determining its genuineness and the subsequent costs order.