Rogers v Rogers (No 2) [2020] NSWSC 574

Rogers v Rogers (No 2) [2020] NSWSC 574

Although the first defendant's walk away Calderbank offer involved a genuine compromise, the plaintiff did not act unreasonably in failing to accept it because, when the offer was open, the plaintiff lacked a full account of the transaction, relevant defendants' evidence had not been served, and important matters concerning the use of a Power of Attorney and the $260,000 paid from funds held on trust for the plaintiff were unclear. The appropriate costs order was therefore ordinary costs of the proceedings in favour of the first defendant, excluding costs of the cross-claim, with no order as to costs of the cross-claim because it did not arise and the aspect pressed had no application on...

Jurisdiction
Australia
Judgment Date
15 May 2020
Procedural Posture
Costs Determination in Equity Proceedings / On the Papers After Separate Questions Were Answered Adversely to the Plaintiff and the Proceedings and Cross Claim Were Dismissed
Outcome
Plaintiff ordered to pay the first defendant's costs of the proceedings on the ordinary basis, excluding the first defendant's costs of the cross-claim; no order as to costs of the cross-claim; plaintiff ordered to withdraw the caveat.
Legal Topics
['indemnity Costs' 'calderbank Offer' 'genuine Compromise' 'unreasonable Failure to Accept Offer' 'costs of Cross Claim' 'withdrawal of Caveat']
['costs' 'equity'] ['indemnity Costs' 'calderbank Offer' 'genuine Compromise' 'unreasonable Failure to Accept Offer' 'costs of Cross Claim' 'withdrawal of Caveat']

Case Brief

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Procedural Posture

Costs Determination in Equity Proceedings / On the Papers After Separate Questions Were Answered Adversely to the Plaintiff and the Proceedings and Cross Claim Were Dismissed

Legal Issues

  1. 1 ["Whether the plaintiff should pay the first defendant's costs on an indemnity basis after failing to accept a Calderbank offer dated 21 February 2019." 'Whether the Calderbank offer involved a genuine compromise.' "Whether the plaintiff's failure to accept the Calderbank offer was unreasonable in the circumstances." "Whether the plaintiff should bear the first defendant's costs of the cross-claim." "Whether the plaintiff should withdraw caveat No AJ572979 lodged on the title to the first defendant's Ermington property."]

Ratio Decidendi

Although the first defendant's walk away Calderbank offer involved a genuine compromise, the plaintiff did not act unreasonably in failing to accept it because, when the offer was open, the plaintiff lacked a full account of the transaction, relevant defendants' evidence had not been served, and important matters concerning the use of a Power of Attorney and the $260,000 paid from funds held on trust for the plaintiff were unclear. The appropriate costs order was therefore ordinary costs of the proceedings in favour of the first defendant, excluding costs of the cross-claim, with no order as to costs of the cross-claim because it did not arise and the aspect pressed had no application on...

Court Disposition

Plaintiff ordered to pay the first defendant's costs of the proceedings on the ordinary basis, excluding the first defendant's costs of the cross-claim; no order as to costs of the cross-claim; plaintiff ordered to withdraw the caveat.

Orders

  • ['Order that within 7 days the plaintiff withdraw caveat No AJ572979 lodged by the plaintiff upon the title to the land in Certificate of Title Folio Identifier 10/30464.' "Order that the plaintiff pay the first defendant's costs of the proceedings (not including the first defendant's costs of the cross-claim) on...