Stolfa v Owners Strata Plan 4366 & ors [2009] NSWSC 844

Stolfa v Owners Strata Plan 4366 & ors [2009] NSWSC 844

The plaintiffs had brought the defendants to court and, apart from obtaining declarations reflecting liability that the defendants had repeatedly indicated they were prepared to concede, had failed on the principal issues. The June 2008 offer would have left the plaintiffs no worse off on the unresolved damages issue and better off in other respects than the result achieved, so its rejection was unreasonable. The defendants were therefore entitled to their costs to date, with costs assessed on an indemnity basis from 3 July 2008, except for costs connected with Mr Branch's report, oral evidence and one-third of the view, which were reserved because they may be relevant to the later...

Jurisdiction
Australia
Judgment Date
27 July 2009
Procedural Posture
Consequential Orders / After Principal Judgment; Costs and Directions for Inquiries as to Damages
Outcome
Plaintiffs ordered to pay the defendants' costs of the proceedings to date, with indemnity costs from 3 July 2008, subject to specified reserved costs; directions made for proposed inquiries and expert evidence.
Legal Topics
['calderbank Offer' 'indemnity Costs' 'party Party Costs' 'costs Following Event' 'inquiry as to Damages' 'undertaking as to Damages' 'single Expert Evidence']
['costs' 'civil Procedure' 'equity' 'strata Title' 'nuisance'] ['calderbank Offer' 'indemnity Costs' 'party Party Costs' 'costs Following Event' 'inquiry as to Damages' 'undertaking as to Damages' 'single Expert Evidence']

Case Brief

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Procedural Posture

Consequential Orders / After Principal Judgment; Costs and Directions for Inquiries as to Damages

Legal Issues

  1. 1 ["Whether the plaintiffs should pay the defendants' costs of the proceedings to date despite obtaining declarations as to liability for damage caused to Unit 2." "Whether the defendants' costs should be assessed on an indemnity basis from 18 January 2008 or 3 July 2008 by reason of without prejudice save as to costs offers." "Whether costs referable to Mr Branch's report, oral evidence and part of the view should be excluded or reserved because they relate to unresolved causation and quantum issues on the nuisance/damages claim." "Whether directions should be made concerning the third defendant's proposed inquiry as to damages under the plaintiffs' undertaking as to damages and the plaintiffs' own inquiry as to damages."]

Ratio Decidendi

The plaintiffs had brought the defendants to court and, apart from obtaining declarations reflecting liability that the defendants had repeatedly indicated they were prepared to concede, had failed on the principal issues. The June 2008 offer would have left the plaintiffs no worse off on the unresolved damages issue and better off in other respects than the result achieved, so its rejection was unreasonable. The defendants were therefore entitled to their costs to date, with costs assessed on an indemnity basis from 3 July 2008, except for costs connected with Mr Branch's report, oral evidence and one-third of the view, which were reserved because they may be relevant to the later...

Court Disposition

Plaintiffs ordered to pay the defendants' costs of the proceedings to date, with indemnity costs from 3 July 2008, subject to specified reserved costs; directions made for proposed inquiries and expert evidence.

Orders

  • ["Save insofar as any special costs order otherwise provides, the plaintiffs pay the defendants' costs of the proceedings to date, except for the costs of and incidental to Mr Branch's report and oral evidence and one-third of the costs of the view, which costs are reserved for further consideration in conjunction...