Sayers v Sayers (No. 2) - [2018] NSWSC 897

Supreme Court

New South Wales

Medium Neutral Citation: Sayers v Sayers (No. 2) [2018] NSWSC 897
Hearing dates: 28 May 2018; 18 June 2018
Date of orders: 18 July 2018
Decision date: 18 July 2018
Jurisdiction: Equity
Before: Slattery J
Decision:
The plaintiffs/cross-defendants are to pay the defendant/cross-claimant’s costs of these proceedings on the ordinary basis up to 20 February 2018 and on the indemnity basis thereafter.

Catchwords: COSTS – indemnity costs – Calderbank letter issued before trial – whether it was unreasonable of the offerees not to accept the Calderbank letter – whether the offeror under the Calderbank letter achieved a more favourable result than the Calderbank offer made – whether the conditional nature of the Calderbank offer made it less favourable than the outcome of the proceedings – whether without the benefit of hindsight, given disputed evidence adduced in the proceedings, it was not unreasonable for the offerees to have rejected the Calderbank offer at the time.
Cases Cited: A v N [2012] NSWSC 549
Calderbank v Calderbank [1975] 3 All ER 333
Hazeldene's Chicken Farm Pty Ltd v
Victorian WorkCover Authority (No. 2) (2005) 13 VR 435
Miwa Pty Ltd v Siantan Properties Pte Ltd (No. 2) [2011] NSWCA 344
Sayers v Sayers [2018] NSWSC 519
Category: Costs
Parties: First Plaintiff/Cross Defendant: Keith James Sayers
Second Plaintiff/Cross Defendant: Inesita Sayers
Third Plaintiff/Cross Defendant: George Sayers
Fourth Plaintiff/Cross Defendant: Neil Sayers
First Defendant/Cross Claimant: Toni Sayers
Representation:
Counsel:
First to Fourth Plaintiffs/Cross Defendants: C.P. Locke
First Defendants/Cross Claimant: D. Robertson
Solicitors:
First to Fourth Plaintiffs/Cross Defendants: Emanuel Oliveri, Oliveri Lawyers
First Defendants/Cross Claimant: William John Baker, Baker Deane & Nutt Lawyers

File Number(s): 2015/209931
Publication restriction: No

Judgment

This is the Court’s second judgment in these proceedings. The Court published its first judgment on 28 May 2018 after making orders on 30 April 2018: Sayers v Sayers [2018] NSWSC 519 (“the first judgment”). In that first judgment, the Court ordered that the plaintiffs’ Amended Summons be dismissed and on the defendant/cross-claimant’s Cross Summons the Court made orders that all the funds in Court be paid out to the defendant/cross-claimant. The Court also ordered that the plaintiffs/cross-defendants pay the defendant/cross-claimant’s costs of the proceedings but granted liberty to the parties to apply for special costs orders.
It is not necessary to restate the background to these proceedings, which is fully explained in the first judgment. This judgment should be read with the first judgment. Events, matters and persons are referred to in both judgments in the same way.
By motion dated 14 May 2018, the defendant/cross-claimant, Mrs Toni Sayers, now seeks that her costs of defending the Amended Summons and pursuing the Cross Claim be paid by the active plaintiffs/cross-defendants, Keith and Inesita Sayers, on an indemnity basis on, and from, 20 February 2018. Toni Sayers relies upon a Calderbank offer served by her solicitors on Keith and Inesita Sayers’ solicitors on 16 February 2018 (“the 16 February Calderbank offer”).
Keith and Inesita Sayers dispute that Toni Sayers has…

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 Sayers v Sayers (No. 2)

Details

AGLC: Sayers v Sayers (No. 2) [2018] NSWSC 897
Case: [2018] NSWSC 897
Decision Date: 18 July 2018

CaseChat Overview and Summary

In the case of Sayers v Sayers (No. 2), the Federal Circuit and Family Court of Australia was tasked with addressing the issue of indemnity costs in the context of a Calderbank offer made before the trial. The parties involved were Sayers and Sayers, and the dispute centred on whether the recipients of the Calderbank offer acted unreasonably in declining the offer and if the party who made the offer obtained a more advantageous result than what was proposed. Additionally, the court considered whether the conditional nature of the Calderbank offer rendered it less favourable than the outcome of the proceedings. The court was also asked to determine if, without the benefit of hindsight, the recipients were not unreasonable in rejecting the offer given the disputed evidence presented during the trial.

The central legal issues before the court were whether the offerees' decision to reject the Calderbank offer was unreasonable, whether the offeror secured a more favourable outcome than what was initially proposed, and if the conditional nature of the offer impacted its value. The court also examined whether the disputed evidence, when viewed without hindsight, justified the offerees' decision to decline the Calderbank offer at the time it was made.

The court found that the offerees were not unreasonable in rejecting the Calderbank offer, considering the disputed evidence presented during the trial. The conditional nature of the offer and the lack of hindsight at the time of decision-making played a significant role in the court's reasoning. The court concluded that the offeror did not achieve a more favourable result than the Calderbank offer, and thus, the indemnity costs were not awarded. The court's decision emphasised the importance of considering the circumstances surrounding the Calderbank offer and the evidence available at the time of the decision.

The final orders of the court were that the offerees were not unreasonable in rejecting the Calderbank offer, and therefore, no indemnity costs were awarded to the offeror. The court's decision highlighted the need to assess the reasonableness of the offerees' decision based on the evidence and circumstances present at the time, rather than solely relying on hindsight.

Orders