Sayers v Sayers (No. 2) [2018] NSWSC 897

Sayers v Sayers (No. 2) [2018] NSWSC 897

It was unreasonable for Keith and Inesita Sayers to reject the 16 February 2018 Calderbank offer because, even allowing for the value of Darke J's September 2015 costs orders that they would have given up, acceptance of the offer would have left them better off than the judgment outcome, under which they recovered nothing and were ordered to pay Toni Sayers' costs. The offer was made a reasonable time before trial, remained open for seven days, was a genuine compromise, clearly foreshadowed reliance for indemnity costs, and the offerees were in a position to assess the merits of their case.

Jurisdiction
Australia
Judgment Date
18 July 2018
Procedural Posture
Costs Application in Equity Proceedings / Post Judgment Motion for Indemnity Costs Based on a Calderbank Offer
Outcome
The defendant/cross-claimant succeeded on the indemnity costs application.
Legal Topics
['indemnity Costs' 'calderbank Offer' 'reasonableness of Non Acceptance of Settlement Offer' 'comparison Between Settlement Offer and Judgment Outcome']
['costs' 'civil Procedure' 'equity'] ['indemnity Costs' 'calderbank Offer' 'reasonableness of Non Acceptance of Settlement Offer' 'comparison Between Settlement Offer and Judgment Outcome']

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Procedural Posture

Costs Application in Equity Proceedings / Post Judgment Motion for Indemnity Costs Based on a Calderbank Offer

Legal Issues

  1. 1 ["Whether it was unreasonable for Keith and Inesita Sayers not to accept Toni Sayers' 16 February 2018 Calderbank offer." 'Whether Toni Sayers achieved a more favourable result in the proceedings than under the Calderbank offer.' 'Whether the requirement in the Calderbank offer that existing costs orders be vacated made the offer less favourable than the judgment outcome.' 'From what date indemnity costs should be assessed if the Calderbank offer justified such an order.']

Ratio Decidendi

It was unreasonable for Keith and Inesita Sayers to reject the 16 February 2018 Calderbank offer because, even allowing for the value of Darke J's September 2015 costs orders that they would have given up, acceptance of the offer would have left them better off than the judgment outcome, under which they recovered nothing and were ordered to pay Toni Sayers' costs. The offer was made a reasonable time before trial, remained open for seven days, was a genuine compromise, clearly foreshadowed reliance for indemnity costs, and the offerees were in a position to assess the merits of their case.

Court Disposition

The defendant/cross-claimant succeeded on the indemnity costs application.

Orders

  • ["The plaintiffs/cross-defendants pay the defendant/cross-claimant's costs of these proceedings on the ordinary basis up to 20 February 2018 and on the indemnity basis on and from 20 February 2018." "The Court noted that as the defendant/cross-claimant has been successful on this application, the...