Liew & Anor v Barthelmess & Ors (No.2) [2024] NSWDC 403

Liew & Anor v Barthelmess & Ors (No.2) [2024] NSWDC 403

The Court found that the offer made on 20 September 2023 complied with r 20.26 of the UCPR and constituted a genuine offer of compromise. The purchasers' rejection of this offer was unreasonable, particularly given the final outcome was no less favourable to the vendors than the terms offered. Therefore, the vendors are entitled to recover costs on an indemnity basis from the day after the offer was made (21 September 2023).

Jurisdiction
Australia
Judgment Date
09 September 2024
Procedural Posture
Civil / Post Judgment, Costs Application
Outcome
Application granted in part. Costs order varied to provide indemnity costs from 21 September 2023.
Legal Topics
['costs' 'settlement Offers' 'indemnity Costs' 'offers of Compromise' 'calderbank Offers']
['civil Procedure'] ['costs' 'settlement Offers' 'indemnity Costs' 'offers of Compromise' 'calderbank Offers']

Case Brief

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Procedural Posture

Civil / Post Judgment, Costs Application

Legal Issues

  1. 1 ['Whether the vendors are entitled to an order for indemnity costs following rejection of multiple settlement offers, including both Calderbank and rules offers.' 'Whether any of the offers constituted a genuine offer of compromise for purposes of costs sanctions.' 'The appropriate date from which, if at all, indemnity costs should be payable.']

Ratio Decidendi

The Court found that the offer made on 20 September 2023 complied with r 20.26 of the UCPR and constituted a genuine offer of compromise. The purchasers' rejection of this offer was unreasonable, particularly given the final outcome was no less favourable to the vendors than the terms offered. Therefore, the vendors are entitled to recover costs on an indemnity basis from the day after the offer was made (21 September 2023).

Court Disposition

Application granted in part. Costs order varied to provide indemnity costs from 21 September 2023.

Orders

  • ["Order 5 made on 13 August 2024 is varied: plaintiffs/cross-defendants to pay the defendants/cross-claimants' costs of proceedings up to 20 September 2023 on the ordinary basis and from 21 September 2023 on an indemnity basis, as agreed or assessed." "No order as to costs in respect of the...