Devereaux v Kyriazis (No 2) [2020] NSWLEC 17

Devereaux v Kyriazis (No 2) [2020] NSWLEC 17

The letters relied on by Applicants as Calderbank offers included terms incapable of being given effect by an order of the Court and thus were not proper Calderbank offers; as such, refusal to accept these offers could not justify an award of indemnity costs, and there was no proper basis for a costs order against the Respondents.

Parties
First Applicant: Mr C Devereaux; Second Applicant: Ms B Devereaux; First Respondent: Mr J Kyriazis; Second Respondent: Ms S Kyriazis
Jurisdiction
Australia
Judgment Date
26 February 2020
Procedural Posture
Class 3 Application Under the Encroachment of Buildings Act 1922 / Costs Application After Principal Proceedings Settled by Consent
Outcome
Costs application dismissed; no order for costs of the costs application.
Legal Topics
Costs, Indemnity Costs, Calderbank Offers, Encroachment of Buildings
Civil Procedure Property Law Costs Indemnity Costs Calderbank Offers Encroachment of Buildings

Case Brief

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Parties

Mr C Devereaux

First Applicant

Ms B Devereaux

Second Applicant

Mr J Kyriazis

First Respondent

Ms S Kyriazis

Second Respondent

Procedural Posture

Class 3 Application Under the Encroachment of Buildings Act 1922 / Costs Application After Principal Proceedings Settled by Consent

Legal Issues

  1. 1 Whether indemnity costs should be awarded following settlement of principal proceedings by consent
  2. 2 Whether refusal of purported Calderbank offers justifies costs order

Ratio Decidendi

The letters relied on by Applicants as Calderbank offers included terms incapable of being given effect by an order of the Court and thus were not proper Calderbank offers; as such, refusal to accept these offers could not justify an award of indemnity costs, and there was no proper basis for a costs order against the Respondents.

Court Disposition

Costs application dismissed; no order for costs of the costs application.

Orders

  • Costs application is dismissed.
  • No costs order made for the costs application.