Sahade v Bischoff (No 2) [2016] NSWCA 45

Sahade v Bischoff (No 2) [2016] NSWCA 45

The respondents' joint offer of compromise did not engage the indemnity costs consequences in UCPR r 42.15A, nor Calderbank consequences, because it was made jointly to independent parties with separate causes of action and different interests and was not capable of acceptance by either appellant or cross-respondent separately. In any event, the offer involved no significant compromise and the Court would have ordered otherwise. Costs therefore followed the event: the appellants were to pay the respondents' costs of the unsuccessful appeal, the cross-applicants were to pay the cross-respondents' costs of the unsuccessful cross-summons, and each party was to bear its own costs of the costs...

Jurisdiction
Australia
Judgment Date
15 March 2016
Procedural Posture
Costs Application in Appeal and Cross Summons for Leave to Cross Appeal / After Judgment Dismissing the Appeals and Dismissing the Cross Summons, With Costs Reserved; Determined on the Papers.
Outcome
The respondents' application for indemnity or special costs based on the offer of compromise or Calderbank principles was not accepted; costs were ordered to follow the event for the appeal and cross-summons, with no costs order for the costs application.
Legal Topics
['indemnity Costs' 'offer of Compromise' 'calderbank Offer' 'joint Offer to Multiple Offerees' 'costs Following the Event']
['costs' 'civil Procedure' 'appellate Procedure'] ['indemnity Costs' 'offer of Compromise' 'calderbank Offer' 'joint Offer to Multiple Offerees' 'costs Following the Event']

Case Brief

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Procedural Posture

Costs Application in Appeal and Cross Summons for Leave to Cross Appeal / After Judgment Dismissing the Appeals and Dismissing the Cross Summons, With Costs Reserved; Determined on the Papers.

Legal Issues

  1. 1 ["Whether the respondents' joint offer of compromise engaged the costs consequences in UCPR r 42.15A for the appeal." "Whether the offer could operate in respect of the cross-summons, having regard to the parties' status as plaintiffs or defendants for the purposes of the UCPR costs rules." 'Whether the joint offer was capable of acceptance by the appellants or cross-respondents separately where they had separate causes of action and different interests.' 'Whether the offer should alternatively justify indemnity costs as a Calderbank offer.' 'What costs orders should be made for the appeal, the cross-summons and the costs application.']

Ratio Decidendi

The respondents' joint offer of compromise did not engage the indemnity costs consequences in UCPR r 42.15A, nor Calderbank consequences, because it was made jointly to independent parties with separate causes of action and different interests and was not capable of acceptance by either appellant or cross-respondent separately. In any event, the offer involved no significant compromise and the Court would have ordered otherwise. Costs therefore followed the event: the appellants were to pay the respondents' costs of the unsuccessful appeal, the cross-applicants were to pay the cross-respondents' costs of the unsuccessful cross-summons, and each party was to bear its own costs of the costs...

Court Disposition

The respondents' application for indemnity or special costs based on the offer of compromise or Calderbank principles was not accepted; costs were ordered to follow the event for the appeal and cross-summons, with no costs order for the costs application.

Orders

  • ["The appellants to pay the respondents' costs of the appeal." "The cross-applicants to pay the cross-respondents' costs of the cross-summons." 'Each party to bear their own costs of this application for costs.']