CHITTS v HAMIED (No. 2) [2023] NSWDC 226

CHITTS v HAMIED (No. 2) [2023] NSWDC 226

Because of the failures in the defendant's solicitors' office leading to delay in serving expert reports, and as this amounted to disentitling behaviour, the usual rule that costs follow the event was displaced. The 1 June 2023 letter was not a genuine Calderbank offer or, if it was, the time for consideration was so short that it was not unreasonable for the plaintiff to refuse the offer. Accordingly, the defendant is to pay the costs of and incidental to the Notice of Motion.

Parties
Respondent/plaintiff: Mark Anthony CHITTS; Applicant/defendant: Sadek HAMIED
Jurisdiction
Australia
Judgment Date
28 June 2023
Procedural Posture
Civil / Costs Determination Following Interlocutory Motion
Outcome
The applicant defendant is to pay the costs of and incidental to the Notice of Motion.
Legal Topics
Costs, Indulgence Principle, Calderbank Offers, Disentitling Behaviour
Civil Procedure Costs Indulgence Principle Calderbank Offers Disentitling Behaviour

Case Brief

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Parties

Mark Anthony CHITTS

Respondent/plaintiff

Sadek HAMIED

Applicant/defendant

Procedural Posture

Civil / Costs Determination Following Interlocutory Motion

Legal Issues

  1. 1 Whether the defendant should bear the costs of the Notice of Motion despite being granted leave to rely on expert reports
  2. 2 Whether the letter dated 1 June 2023 constituted a Calderbank offer

Ratio Decidendi

Because of the failures in the defendant's solicitors' office leading to delay in serving expert reports, and as this amounted to disentitling behaviour, the usual rule that costs follow the event was displaced. The 1 June 2023 letter was not a genuine Calderbank offer or, if it was, the time for consideration was so short that it was not unreasonable for the plaintiff to refuse the offer. Accordingly, the defendant is to pay the costs of and incidental to the Notice of Motion.

Court Disposition

The applicant defendant is to pay the costs of and incidental to the Notice of Motion.

Orders

  • The applicant defendant is to pay the costs of and incidental to the Notice of Motion.
  • Other orders as set out at [51] of the judgment of 9 June 2023.