Skalkos v Assaf (No 2)

[2002] NSWCA 236

CITATION:	SKALKOS v ASSAF (NO 2) [2002] NSWCA 236
FILE NUMBER(S):	CA 40860/00
HEARING DATE(S):	On the papers
JUDGMENT DATE:	23 July 2002
PARTIES :	THEODORE SKALKOS & ANOR v JOSEPH ASSAF & ANOR (nO 2)
JUDGMENT OF:	Mason P; Giles JA; Fitzgerald AJA

COUNSEL:	Appellants: J A Darvall Respondents: K Rees
SOLICITORS:	Appellants: Tony Lazaropoulos Respondents: Mallesons Stephen Jaques
CATCHWORDS:	COSTS - indemnity costs in Court of Appeal - offer of compromise from plaintiff ignored by defendants - broad judicial discretion - Calderbank letter a relevant but not determinative factor - whether judgment was a substantial improvement on terms offered - whether appellants' conduct can be categorised as unreasonable. (ND)
CASES CITED:	Cases Cited Assaf v Skalkos [2000] NSWSC 935 CBA Investments Ltd v Northern Star limited (No 2) [2000] NSWCA 146 Ettingshausen v Australian Consolidated Press Ltd (1995) 38 NSWLR 404 Multicon Engineering Pty Ltd v Federal Airports Corporation (1996) 138 ALR 425 Nobrega v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (No 2) [1999] NSWCA 133 Patronis v Oinoi & Kampi Pty Ltd (unrep, NSWSC, 30/11/93) Sanko Steamship Co Ltd v Sumitomo Australia Ltd (unrep, Fed Ct, No 22/96, 7/2/96) Skalkos & Anor v Assaf & Anor (2002) NSWCA 14 SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323
DECISION:	Appellants to pay the respondents' costs of the appeal on an indemnity basis.

CA 40860/00

MASON P
GILES JA
FITZGERALD AJA

Tuesday 23 July 2002

THEODORE SKALKOS & ANOR v JOSEPH ASSAF & ANOR (No 2)

JUDGMENT

1 THE COURT: On 13 February 2002 this appeal was dismissed with costs, with liberty to apply within 28 days if some special costs order was sought (see Skalkos & Anor v Assaf & Anor (2002) NSWCA 14). The Court rejected an application for indemnity costs to the extent that it was based upon the submission that the appellants had pressed an unarguable case. However, liberty to apply for a special costs order was reserved in case indemnity costs were sought on the basis of an unaccepted settlement offer (at [86]).

2 The respondents seek such an order, relying on the appellants’ rejection of a Calderbank offer made on 8 July 1994. The offer and the consequences of its rejection as regards the costs at trial are discussed in the judgment of Carruthers AJ in Assaf v Skalkos [2000] NSWSC 935.

3 Carruthers AJ ordered the then defendants to pay the plaintiffs’ costs on a party and party basis until 16 August 1994 and thereafter on an indemnity basis. He held that they had unreasonably rejected the plaintiffs’ offer on 8 July 1994 to settle the proceedings. On 16 August 1994 the offer was quantified as an offer to accept in full settlement:

(a) $10,000;

(b) Indemnity costs of $25,389.52; and

(c) Publication of an apology, in terms which had by that date been agreed with the defendants.

4 Carruthers AJ considered the apology, costs and compensation sought to be reasonable: see…