Hammond v Hammond (No 2) [2010] NSWSC 377

Hammond v Hammond (No 2) [2010] NSWSC 377

The first basis for indemnity costs was not established because, although the defendant's construction case was weak and the implied term case had no real prospect of success, the rectification common intention case was not shown to be unarguable or hopeless from the outset. The second basis was established because the three offers were genuine offers of compromise, the proceedings were essentially directed to requiring the defendant to pay the plaintiff the money claimed, the offers would have disposed of the whole proceeding, and in all the circumstances it was unreasonable for the defendant not to accept the 17 March 2010 offer.

Jurisdiction
Australia
Judgment Date
30 April 2010
Procedural Posture
Costs Application in Equity Proceedings / Post Judgment Application for Indemnity Costs Determined on Written Submissions
Outcome
Plaintiff obtained an indemnity costs order from 17 March 2010 based on unreasonable non-acceptance of the Calderbank offer; the argument that the defendant's case was hopeless was rejected.
Legal Topics
['indemnity Costs' 'calderbank Offers' 'genuine Offer of Compromise' 'unreasonable Rejection of Settlement Offer' 'trustee Accounting']
['costs' 'equity' 'trusts and Estates'] ['indemnity Costs' 'calderbank Offers' 'genuine Offer of Compromise' 'unreasonable Rejection of Settlement Offer' 'trustee Accounting']

Case Brief

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Procedural Posture

Costs Application in Equity Proceedings / Post Judgment Application for Indemnity Costs Determined on Written Submissions

Legal Issues

  1. 1 ["Whether indemnity costs should be awarded because the defendant's case was manifestly devoid of merit and he should have known he had no real prospect of success." "Whether indemnity costs should be awarded because the defendant acted unreasonably in not accepting the plaintiff's Calderbank offers."]

Ratio Decidendi

The first basis for indemnity costs was not established because, although the defendant's construction case was weak and the implied term case had no real prospect of success, the rectification common intention case was not shown to be unarguable or hopeless from the outset. The second basis was established because the three offers were genuine offers of compromise, the proceedings were essentially directed to requiring the defendant to pay the plaintiff the money claimed, the offers would have disposed of the whole proceeding, and in all the circumstances it was unreasonable for the defendant not to accept the 17 March 2010 offer.

Court Disposition

Plaintiff obtained an indemnity costs order from 17 March 2010 based on unreasonable non-acceptance of the Calderbank offer; the argument that the defendant's case was hopeless was rejected.

Orders

  • ["In lieu of the costs order made on 30 April 2010, the defendant is to pay the plaintiff's costs of the proceedings up to and including 16 March 2010 on the ordinary basis and from 17 March 2010 on an indemnity basis."]