Bakovski v Lenehan (No 2) [2014] NSWSC 739

Bakovski v Lenehan (No 2) [2014] NSWSC 739

The plaintiffs' 21 February 2013 offer was a genuine and proper Calderbank offer made when the parties understood the factual issues and litigation risks. The $150,000 costs component was not shown to be an overstatement or misrepresentation because it was based on work in progress estimates and apportionment assumptions, and the solicitor was not cross-examined. Given the risks in the litigation and the sufficient compromise offered, the defendants' refusal was unreasonable, justifying indemnity costs from 22 February 2013.

Jurisdiction
Australia
Judgment Date
02 June 2014
Procedural Posture
Costs Application Following Judgment / Written Submissions After Judgment Concerning Interest Calculations and Costs
Outcome
Judgment for the plaintiffs against the first and second defendants, with costs on the ordinary basis up to and including 21 February 2013 and on the indemnity basis from 22 February 2013 to judgment.
Legal Topics
['calderbank Offer' 'indemnity Costs' 'offer of Compromise' 'unreasonable Refusal of Settlement Offer' 'costs Assessment']
['civil Procedure' 'costs'] ['calderbank Offer' 'indemnity Costs' 'offer of Compromise' 'unreasonable Refusal of Settlement Offer' 'costs Assessment']

Case Brief

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Procedural Posture

Costs Application Following Judgment / Written Submissions After Judgment Concerning Interest Calculations and Costs

Legal Issues

  1. 1 ['Whether judgment should be entered for the plaintiffs against the first and second defendants in the sum calculated with interest.' "Whether the first and second defendants should pay the plaintiffs' costs on the ordinary basis up to and including 21 February 2013 and on the indemnity basis from 22 February 2013." "Whether the defendants' refusal of the plaintiffs' 21 February 2013 Calderbank offer was unreasonable." "Whether the plaintiffs' offer, including $150,000 inclusive of costs, involved an overstatement or misrepresentation of costs."]

Ratio Decidendi

The plaintiffs' 21 February 2013 offer was a genuine and proper Calderbank offer made when the parties understood the factual issues and litigation risks. The $150,000 costs component was not shown to be an overstatement or misrepresentation because it was based on work in progress estimates and apportionment assumptions, and the solicitor was not cross-examined. Given the risks in the litigation and the sufficient compromise offered, the defendants' refusal was unreasonable, justifying indemnity costs from 22 February 2013.

Court Disposition

Judgment for the plaintiffs against the first and second defendants, with costs on the ordinary basis up to and including 21 February 2013 and on the indemnity basis from 22 February 2013 to judgment.

Orders

  • ['Judgment entered in favour of the plaintiffs against the first and second defendants in the sum of $444,772.92.' "The first and second defendants are to pay the plaintiffs' costs of the proceedings as against the first and second defendants, such costs to be assessed on the ordinary basis in respect of the period...