Crossman v Sheahan (No 2) [2016] NSWCA 351

Crossman v Sheahan (No 2) [2016] NSWCA 351

It was not unreasonable for the respondents to reject the 2012 and 2013 compromise offers for costs at first instance, given the complexity, claim quantum, and timing; however, the 5 April 2016 Calderbank offer of $2m on appeal was a genuine compromise, remained open for a reasonable period (with an extension offered), and its rejection was unreasonable, warranting indemnity costs for the appeal from 12 April 2016 onwards.

Jurisdiction
Australia
Judgment Date
13 December 2016
Procedural Posture
Appeal / Post Appeal Costs Determination
Outcome
Appeal allowed. Costs orders varied.
Legal Topics
['costs' 'indemnity Costs' 'calderbank Offers' 'appeal Costs' 'compromise Offers']
['civil Procedure'] ['costs' 'indemnity Costs' 'calderbank Offers' 'appeal Costs' 'compromise Offers']

Case Brief

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Procedural Posture

Appeal / Post Appeal Costs Determination

Legal Issues

  1. 1 ['Whether indemnity costs should be awarded based on Calderbank offers' 'Whether the offers represented genuine compromise' 'Reasonableness of rejection of offers' 'Appropriate basis for costs assessment']

Ratio Decidendi

It was not unreasonable for the respondents to reject the 2012 and 2013 compromise offers for costs at first instance, given the complexity, claim quantum, and timing; however, the 5 April 2016 Calderbank offer of $2m on appeal was a genuine compromise, remained open for a reasonable period (with an extension offered), and its rejection was unreasonable, warranting indemnity costs for the appeal from 12 April 2016 onwards.

Court Disposition

Appeal allowed. Costs orders varied.

Orders

  • ['Vary order 1 of the orders made on 23 August 2016 and add a new order 1A as follows:' 'Appeal allowed.' "Order the first and second respondents to pay the appellants' costs of the appeal: a. on an ordinary basis until 11 April 2016; b. on an indemnity basis from 12 April 2016." 'There be no order as to the costs...