Smits & Ors v Roach & Ors [2002] NSWSC 663

Smits & Ors v Roach & Ors [2002] NSWSC 663

The 19 September 2000 offer was a clear, commercially significant compromise because the defendants offered to admit a $375,000 proof of debt, the plaintiffs ultimately failed and did not better that offer, and the plaintiffs' failure to accept it was relevantly unreasonable. The defendants were therefore entitled to costs of the summons, with indemnity costs from 19 September 2000. The plaintiffs succeeded in resisting the cross-claim and were entitled to party and party costs of it.

Jurisdiction
Australia
Judgment Date
06 August 2002
Procedural Posture
Costs Application in Equity Division Commercial List Proceedings / Post Judgment Determination of Costs
Outcome
Defendants awarded costs of the summons on a party and party basis up to 19 September 2000 and on an indemnity basis after that date; plaintiffs awarded costs of the cross-claim on a party and party basis.
Legal Topics
['indemnity Costs' 'offer of Compromise' 'calderbank Offer' 'reasonableness of Rejecting Settlement Offer' 'party and Party Costs' "solicitor's Entitlement to Costs"]
['costs' 'civil Procedure' 'legal Profession'] ['indemnity Costs' 'offer of Compromise' 'calderbank Offer' 'reasonableness of Rejecting Settlement Offer' 'party and Party Costs' "solicitor's Entitlement to Costs"]

Case Brief

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Procedural Posture

Costs Application in Equity Division Commercial List Proceedings / Post Judgment Determination of Costs

Legal Issues

  1. 1 ['Whether the defendants should receive indemnity costs because the plaintiffs rejected settlement offers that were not bettered in the litigation.' 'Whether the September 1999 agreement justified indemnity costs against the plaintiffs.' "Whether the plaintiffs' conduct of the proceedings justified indemnity costs." "Whether the plaintiffs should receive costs of the defendants' cross-claim despite being solicitors."]

Ratio Decidendi

The 19 September 2000 offer was a clear, commercially significant compromise because the defendants offered to admit a $375,000 proof of debt, the plaintiffs ultimately failed and did not better that offer, and the plaintiffs' failure to accept it was relevantly unreasonable. The defendants were therefore entitled to costs of the summons, with indemnity costs from 19 September 2000. The plaintiffs succeeded in resisting the cross-claim and were entitled to party and party costs of it.

Court Disposition

Defendants awarded costs of the summons on a party and party basis up to 19 September 2000 and on an indemnity basis after that date; plaintiffs awarded costs of the cross-claim on a party and party basis.

Orders

  • ["Order the plaintiffs' to pay the defendants' costs of the summons up to 19 September 2000 on a party and party basis." 'Those costs, after 19 September 2000, on an indemnity basis.' "Order the defendants' to pay the plaintiffs' costs of the cross-claim on a party and party basis."]