Suzanne Marie Ryan and Mary Agnes Briggs as executrices of the estate of the late Patrick Joseph Donoghue & Anor v Prenitha Srimath Wikramanayake & Anor (No 2) [2013] NSWSC 1171

Suzanne Marie Ryan and Mary Agnes Briggs as executrices of the estate of the late Patrick Joseph Donoghue & Anor v Prenitha Srimath Wikramanayake & Anor (No 2) [2013] NSWSC 1171

The defendants' 9 November 2012 Calderbank offer was a genuine compromise, was open for a reasonable time, was made when the nature of the contest was apparent, and was more favourable to the plaintiffs than the ultimate outcome; it was therefore unreasonable for the plaintiffs not to accept it and indemnity costs should run from its expiry on 23 November 2012. Before that date, although the plaintiffs were well motivated and innocent victims of third party conduct, they unsuccessfully pursued litigation that the defendants had to defend, so the ordinary rule that costs follow the event applied.

Jurisdiction
Australia
Judgment Date
27 August 2013
Procedural Posture
Costs Application Following Dismissal of Plaintiffs' Claims / Determination of Costs, Including Indemnity Costs After a Calderbank Offer
Outcome
Plaintiffs ordered to pay the defendants' costs on the ordinary basis before 23 November 2012 and on the indemnity basis from 23 November 2012.
Legal Topics
['indemnity Costs' 'calderbank Offer' 'costs Follow the Event' 'ordinary Basis Costs']
['civil Procedure' 'costs'] ['indemnity Costs' 'calderbank Offer' 'costs Follow the Event' 'ordinary Basis Costs']

Case Brief

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Procedural Posture

Costs Application Following Dismissal of Plaintiffs' Claims / Determination of Costs, Including Indemnity Costs After a Calderbank Offer

Legal Issues

  1. 1 ["Whether the plaintiffs should pay the defendants' costs on an indemnity basis after expiry of the Calderbank offer dated 9 November 2012." "Whether the plaintiffs should pay only a percentage of the defendants' costs incurred before the Calderbank offer because they pursued the proceedings as executrices and as innocent victims of third party conduct."]

Ratio Decidendi

The defendants' 9 November 2012 Calderbank offer was a genuine compromise, was open for a reasonable time, was made when the nature of the contest was apparent, and was more favourable to the plaintiffs than the ultimate outcome; it was therefore unreasonable for the plaintiffs not to accept it and indemnity costs should run from its expiry on 23 November 2012. Before that date, although the plaintiffs were well motivated and innocent victims of third party conduct, they unsuccessfully pursued litigation that the defendants had to defend, so the ordinary rule that costs follow the event applied.

Court Disposition

Plaintiffs ordered to pay the defendants' costs on the ordinary basis before 23 November 2012 and on the indemnity basis from 23 November 2012.

Orders

  • ["Order the plaintiffs to pay the defendants' costs of these proceedings on the ordinary basis prior to 23 November 2012." 'Order the plaintiffs to pay the defendants costs of the proceedings on the indemnity basis from 23 November 2012.']