Arnold v Forsythe (No 2) [2012] NSWCA 283

Arnold v Forsythe (No 2) [2012] NSWCA 283

The appellant's Calderbank costs motion failed because the orders ultimately made by the Court were significantly less favourable to the appellant than the terms of the 17 June 2011 offer, including as to costs of the motion to set aside default judgment and the unresolved question whether the appellant should be permitted to file a defence and cross-claim. It was therefore not unreasonable for the respondents not to accept the offer, and no indemnity costs order was warranted.

Jurisdiction
Australia
Judgment Date
13 September 2012
Procedural Posture
Costs Motion in Appeal / Motion Determined on the Papers After Appeal Allowed
Outcome
The appellant's motion was dismissed with costs, and the respondents were granted a certificate in respect of the appeal if otherwise qualified.
Legal Topics
['calderbank Offer' 'indemnity Costs' 'default Judgment' 'suitors Fund Certificate']
['civil Procedure' 'costs'] ['calderbank Offer' 'indemnity Costs' 'default Judgment' 'suitors Fund Certificate']

Case Brief

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Procedural Posture

Costs Motion in Appeal / Motion Determined on the Papers After Appeal Allowed

Legal Issues

  1. 1 ["Whether the appellant's letter dated 17 June 2011 was a genuine Calderbank offer of compromise warranting indemnity costs of the appeal." "Whether it was unreasonable for the respondents not to accept the appellant's offer." 'Whether the respondents should have a certificate in respect of the appeal under the Suitors Fund Act 1951.']

Ratio Decidendi

The appellant's Calderbank costs motion failed because the orders ultimately made by the Court were significantly less favourable to the appellant than the terms of the 17 June 2011 offer, including as to costs of the motion to set aside default judgment and the unresolved question whether the appellant should be permitted to file a defence and cross-claim. It was therefore not unreasonable for the respondents not to accept the offer, and no indemnity costs order was warranted.

Court Disposition

The appellant's motion was dismissed with costs, and the respondents were granted a certificate in respect of the appeal if otherwise qualified.

Orders

  • ["The appellant's motion filed on 8 March 2012 be dismissed." "The appellant pay the respondents' costs of the motion." 'The respondents, if otherwise qualified, have a certificate in respect of the appeal under the Suitors Fund Act 1951.']