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
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:
Other:
Clayton Utz (plaintiff)
Defendant (self-represented)
File Number(s): 2021/00085057 Publication restriction: None
Judgment
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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.
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The plaintiff, having been successful in the proceedings, is prima facie entitled to his costs. He seeks alternative orders for indemnity costs as follows:
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.
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…
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- AGLC
- Williams, William v Williams, William (No 2) [2023] NSWDC 69
- Case
- [2023] NSWDC 69
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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