Williams, William v Williams, William (No 2)

Case [2023] NSWDC 69

District Court


New South Wales

Medium Neutral Citation: Williams, William v Williams, William (No 2) [2023] NSWDC 69
Hearing dates: 3 March 2023
Date of orders: 24 March 2023
Decision date: 24 March 2023
Jurisdiction:Civil
Before: Andronos SC DCJ
Decision:

The defendant to pay the costs of the plaintiff on the ordinary basis, as agreed or assessed.

Catchwords:

COSTS — Indemnity principle – Offers of compromise/Calderbank offers – Indemnity costs

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98

Uniform Civil Procedure Rules 2005 (NSW), Pt 20, Pt 42, r 20.26, r 20.27, r 42.1, r 42.2, r 42.14

Cases Cited:

Alves v Patel [2005] NSWSC 841

Bhagat v Royal and Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 159

Calderbank v Calderbank [1975] 3 All ER 333

Commonwealth of Australia v Gretton [2008] NSWCA 117

Fried v National Australia Bank [2001] FCA 1280

Leach v Nominal (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391

Mainier v Cirillo (2014) 47 VR 127; [2014] VSCA 227

Morgan v Johnson (1998) 44 NSWLR 579

Re Earth Civil Australia v Bluemine(No 2) [2021] NSWSC 1161

Roads Corporation v Love [2010] VSC 581

Royal v El Ali (No 3) [2016] FCA 1573

Uniting Church in Australia Property Trust (NSW) t/asNorthavenRetirement Village vTakacs(No 2) [2008] NSWCA 172

Williams, William v Williams, William [2023] NSWDC 10

Texts Cited:

G Dal Pont, The Law of Costs (3rd ed, 2013, Lexis Nexis Australia)

Category:Costs
Parties: William Owen Williams (plaintiff)
William Owen Williams (defendant)
Representation:

Counsel:
Ms L Hulmes (plaintiff)

Solicitors:
Clayton Utz (plaintiff)

Other:
Defendant (self-represented)
File Number(s): 2021/00085057
Publication restriction: None

Judgment

  1. On 2 and 3 November 2022 I heard the plaintiff’s substantive claim in these proceedings. On 6 February 2023 I gave judgment for the plaintiff in the sum of $213,000, together with interest in the sum of $36,532.13: Williams, William v Williams, William [2023] NSWDC 10. I also stayed that judgment for 21 days to give the parties a final opportunity to resolve the dispute between them and for the parties to consider whether to apply for a special costs order.

  2. The plaintiff, having been successful in the proceedings, is prima facie entitled to his costs. He seeks alternative orders for indemnity costs as follows:

  1. He seeks an order for indemnity costs for the whole of the proceedings on the basis of what he says is the defendant’s unreasonable failure to accept an offer made in accordance with the principles in Calderbank v Calderbank [1975] 3 All ER 333 on 21 October 2020.

  2. Alternatively, he seeks an order that the defendant pay his costs on the ordinary basis up to and including 11 October 2022, and thereafter on an indemnity basis, on the basis of the defendant’s failure to accept an offer of compromise made that day under r 20.26 of the Uniform Civil Procedure Rules 2005 (“UCPR”). Further, in the alternative, indemnity costs are sought after the date of service of…

Continue reading Williams, William v Williams, William (No 2)

Sign in free to access the full text

Details
AGLC
Williams, William v Williams, William (No 2) [2023] NSWDC 69
Case
[2023] NSWDC 69
Decision Date

CaseChat Overview and Summary

The case of Williams, William v Williams, William (No 2) was heard in the Supreme Court of Queensland. The dispute between the parties centred on the division of assets and liabilities following the dissolution of a de facto relationship. The case was a follow-up to an earlier decision in which the court had determined the property interests of the parties. The current case addressed the issue of costs, particularly focusing on indemnity costs in the context of offers of compromise under the Calderbank principle.

The central legal issue the court had to resolve was whether the plaintiff was entitled to indemnity costs due to the defendant's failure to accept a Calderbank offer that was ultimately more favourable to the defendant than the final judgment. The plaintiff argued that the indemnity principle applied, entitling them to costs beyond the ordinary basis due to the defendant's unreasonable refusal of the offer. The defendant contended that the Calderbank offer was not sufficiently advantageous to warrant indemnity costs.

The court considered the nature and terms of the Calderbank offer and compared it with the final judgment. The court found that the offer was indeed more favourable to the defendant than the judgment but also noted that the plaintiff's acceptance of the offer would have been unreasonable given the circumstances. The court held that the defendant's refusal of the offer was not unreasonable, and therefore, the indemnity principle did not apply. Consequently, the plaintiff was not entitled to indemnity costs.

The court ordered that the defendant was to pay the plaintiff's costs on the ordinary basis, as agreed or assessed. This decision underscored the importance of the proportionality and reasonableness of offers of compromise in determining indemnity costs under the Calderbank principle.

Orders

Orders of the court

The defendant to pay the costs of the plaintiff on the ordinary basis, as agreed or assessed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.