Zhang v Harmstorf (No 2)

Link copied
Case Copied 17 min read

District Court


New South Wales

Medium Neutral Citation: Zhang v Harmstorf (No 2) [2019] NSWDC 116
Hearing dates: 5 April 2019
Date of orders: 10 April 2019
Decision date: 10 April 2019
Jurisdiction:Civil
Before: Dicker SC DCJ
Decision:

(1) Vacate Order (3) made on 8 March 2019;
(2) Order the defendant to pay the plaintiff's costs of the proceedings on the ordinary basis up to and including 8 February 2019 and on an indemnity basis thereafter.

Catchwords: Costs – Calderbank offer made by plaintiff – judgment in favour of plaintiff greater than offer - whether the refusal of defendant unreasonable – whether in all the circumstances an indemnity costs order should be made
Legislation Cited: Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005
Cases Cited: Calderbank v Calderbank (1975) 3 All ER 333
Hanna v Raoul [2018] NSWCA 201
Jones v Bradley (No 2) [2003] NSWCA 258
Ku-ring-gai Council v Chan (No 2) [2018] NSWCA 73
Leichhardt Municipal Council v Green [2004] NSWCA 341
Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344
NRMA Insurance for Nominal Defendant v Al-Bayati (No 2) [2019] NSWCA 14
Russell v Edwards (No 2) [2006] NSWCA 52
Trustee for the Salvation Army (NSW) Property Trust v Becker (No 2) [2007] NSW 194
Whitney v Dream Developments Pty Ltd (2013) 84 NSWLR 311; [2013] NSWCA 188
Zhang v Harmstorf [2019] NSWDC 49
Category:Costs
Parties: Yuguo Zhang (Plaintiff)
Alexander Harmstorf (Defendant)
Representation:

Counsel:
M Klooster (Plaintiff)
A Vernier (Defendant)

  Solicitors:
Shaw McDonald (Plaintiff)
HWL Ebsworth (Defendant)
File Number(s): 2017/00254531

Judgment

  1. Following a two day final hearing, the court handed down its reasons for decision in this matter on 8 March 2019 and made orders including an order that there be judgment for the plaintiff: Zhang v Harmstorf [2019] NSWDC 49 (“the Judgment”). Order 4 made on 8 March 2019 granted liberty to the parties to apply for a different costs order to the usual costs order which was made in the plaintiff’s favour. The plaintiff has applied to the court seeking a special costs order as follows: “The defendant is to pay the plaintiff’s costs of the proceedings on the ordinary basis up to and including 8 February 2019 and on an indemnity basis thereafter”.

  2. These reasons for decision assume a familiarity in the reader of the facts in the Judgment. Essentially the issue in the proceedings was whether the defendant had breached a contract which he had entered into with the plaintiff.

  3. In support of its application, the plaintiff read an affidavit of Ms Amanda Harb dated 14 March 2019. In paragraph 4 of that affidavit, Ms Harb states that she rejected an offer made on behalf of the defendant to settle the matter and made a counter offer on 7 February 2019.

  4. Annexure A to the affidavit of Ms Harb is an email chain which ends with an email from her to the solicitor for the defendant dated 7 February 2019 at 8:48am. The letter…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Zhang v Harmstorf (No 2) and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2019] NSWDC 116
Decision Date

CaseChat Overview and Summary

The case of Zhang v Harmstorf (No 2) involved the plaintiff, Mr Zhang, and the defendant, Mr Harmstorf. The dispute centered around a Calderbank offer made by the plaintiff in a litigation context, with the plaintiff subsequently obtaining a judgment greater than the amount proposed in the offer. The central issue was whether the defendant's refusal to accept the Calderbank offer was unreasonable and whether, considering all circumstances, an indemnity costs order should be made against the defendant. The case was heard in the Supreme Court of Victoria.

The legal issues that the court had to address included the interpretation and application of the principles surrounding Calderbank offers in the context of costs orders in litigation. Specifically, the court needed to determine whether the defendant's refusal to accept the plaintiff's Calderbank offer was unreasonable and whether, under the circumstances, the defendant should be liable for indemnity costs. This required a detailed analysis of the terms of the offer, the subsequent judgment, and the defendant's conduct leading up to and during the litigation.

The court found that the defendant's refusal to accept the Calderbank offer was indeed unreasonable. It was noted that the terms of the offer were clear, and the subsequent judgment in favour of the plaintiff exceeded the amount proposed in the offer. The court also considered the conduct of the parties leading up to the litigation, finding that the defendant's actions were not justified. Based on these findings, the court concluded that an indemnity costs order should be made against the defendant. The court vacated the previous order and ordered the defendant to pay the plaintiff's costs on the ordinary basis up to a certain date and on an indemnity basis thereafter.

Orders

Orders of the court

(1) Vacate Order (3) made on 8 March 2019;

(2) Order the defendant to pay the plaintiff's costs of the proceedings on the ordinary basis up to and including 8 February 2019 and on an indemnity basis thereafter.

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.