Salih v Emirates (No 3)

[2019] NSWDC 770

District Court

New South Wales

Medium Neutral Citation:	Salih v Emirates (No 3) [2019] NSWDC 770
Hearing dates:	27 November 2019 (formal application made); Otherwise on the papers
Date of orders:	20 December 2019
Decision date:	20 December 2019
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) The oral application of the defendant for indemnity costs is rejected. (2) The costs order made on 27 November 2019 is confirmed. (3) The parties should confer as to the costs of the application. If agreement is reached, proposed consent orders should be forwarded to the Associate to Dicker DCJ. If agreement cannot be reached, I grant leave to approach my Associate to relist the matter on 2 business days’ notice.
Catchwords:	Costs – application for indemnity costs based on Calderbank letter – extent of the offer made
Legislation Cited:	Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Calderbank v Calderbank [1975] 3 WLR 586 Gray v Hobson (No 2) [2018] NSWCA 131 Salih v Emirates (No 2) [2019] NSWDC 715 Zhang v Harmstorf (No 2) [2019] NSWDC 116
Category:	Costs
Parties:	Gul Salih (Plaintiff) Emirates (Defendant)
Representation:	Counsel: C Stewart (Plaintiff) D Stanton (Defendant)   Solicitors: AJB Stevens Lawyers (Plaintiff) Norton White (Defendant)
File Number(s):	2018/00319062

Judgment

1. In these proceedings, the court handed down its reasons for decision on 27 November 2019: Salih v Emirates (No 2) [2019] NSWDC 715 (“Judgment”). The plaintiff had unsuccessfully sought damages for an injury sustained by her during a flight with the defendant aircraft carrier on 31 October 2016.

2. On 27 November 2019, the court made the following orders:

1. Judgment for the defendant.

2. The plaintiff is to pay the defendant’s costs as agreed or assessed.

3. Any application to vary the costs order in (2) above should be made within 14 days.

4. Exhibits to be returned in 28 days.

3. When the reasons for decision were published, the legal representative for the defendant, Mr B Lord, made an oral application for an indemnity costs order against the plaintiff from 11am on 2 October 2019. In support of the oral application, the defendant tendered a letter from the defendant’s solicitors to the plaintiff’s solicitors dated 1 October 2019 indicating that the defendant’s solicitors had been instructed to offer settlement of the proceedings on the following basis:

1. Judgment for the plaintiff in the amount of $10,000; and

2. The defendant will pay the plaintiff’s costs of the proceedings.

4. The offer was stated in the letter to be open for written acceptance until 9am on Wednesday 2 October 2019. It was stated that the offer was made on the basis that the costs order of the court, the subject of a certificate of determination dated 13 May 2019 and the defendant’s entitlement to interest on the unpaid costs, would not be waived. Annexed to the letter was a Certificate of Determination of Costs dated 13 May 2019 pursuant to which the amount payable by the plaintiff, Mrs Salih, to the defendant, Emirates, was $14,320.43. It was…