Giuseppe Bonifacio v NSW Trustee and Guardian acting as executor of the Estate of the late Adam Frank Woitala (No.2) [2015] NSWSC 220

Giuseppe Bonifacio v NSW Trustee and Guardian acting as executor of the Estate of the late Adam Frank Woitala (No.2) [2015] NSWSC 220

The first defendant's Calderbank Offer, although modest, involved a genuine compromise because the first defendant offered to give up any claim for its own costs and pay $20,000 to the plaintiffs, reflecting its justified assessment of the strength of the Limitation Act defence. The plaintiffs were able to assess the s 38 issues, including factual matters known to them, and it was objectively unreasonable for them not to accept the offer. Indemnity costs after 14 November 2014 were therefore appropriate.

Jurisdiction
Australia
Judgment Date
13 March 2015
Procedural Posture
Costs; Consequential Orders / On the Papers Following Reasons for Judgment
Outcome
Amended Statement of Claim dismissed; consequential orders made including indemnity costs after 14 November 2014.
Legal Topics
['indemnity Costs' 'calderbank Offer' 'limitation Act Defence' 'dismissal of Amended Statement of Claim']
['costs' 'equity'] ['indemnity Costs' 'calderbank Offer' 'limitation Act Defence' 'dismissal of Amended Statement of Claim']

Case Brief

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Procedural Posture

Costs; Consequential Orders / On the Papers Following Reasons for Judgment

Legal Issues

  1. 1 ["Whether the plaintiffs should pay the first defendant's costs after 14 November 2014 on an indemnity basis because they failed to accept a Calderbank Offer." "Whether the first defendant's Calderbank Offer involved a genuine compromise and whether it was unreasonable for the plaintiffs not to accept it."]

Ratio Decidendi

The first defendant's Calderbank Offer, although modest, involved a genuine compromise because the first defendant offered to give up any claim for its own costs and pay $20,000 to the plaintiffs, reflecting its justified assessment of the strength of the Limitation Act defence. The plaintiffs were able to assess the s 38 issues, including factual matters known to them, and it was objectively unreasonable for them not to accept the offer. Indemnity costs after 14 November 2014 were therefore appropriate.

Court Disposition

Amended Statement of Claim dismissed; consequential orders made including indemnity costs after 14 November 2014.

Orders

  • ['The Amended Statement of Claim is dismissed.' "Direct the plaintiffs, by themselves or their agent, to deliver the Certificate of Title to the land described as Lot 1 in Deposited Plan 10373 and a signed Withdrawal of Caveat in registrable form in respect of registered caveat numbered AH266216 to the first...