PACANOWSKI v SIMON WAKERMAN & ASSOCIATES (NO 2) [2010] NSWCA 40

PACANOWSKI v SIMON WAKERMAN & ASSOCIATES (NO 2) [2010] NSWCA 40

The offers did not provide a real compromise favourable to the applicants, except possibly as to costs, and the Court lacked material to assess any factual element of compromise or the respondents' allegations of unreasonable delay and expense. The offers accurately were characterised as requiring capitulation, their rejection was not unreasonable, and there was otherwise no basis to award indemnity costs.

Jurisdiction
Australia
Judgment Date
17 March 2010
Procedural Posture
Application to Vary Costs Orders After Dismissal of Summons for Leave to Appeal / On the Papers
Outcome
Application to vary the orders made on 10 November 2009 dismissed; no order as to costs of the application.
Legal Topics
['indemnity Costs' 'offers of Compromise' 'calderbank Offers' 'reasonableness of Rejecting Settlement Offer' 'want of Prosecution']
['civil Procedure' 'costs'] ['indemnity Costs' 'offers of Compromise' 'calderbank Offers' 'reasonableness of Rejecting Settlement Offer' 'want of Prosecution']

Case Brief

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Procedural Posture

Application to Vary Costs Orders After Dismissal of Summons for Leave to Appeal / On the Papers

Legal Issues

  1. 1 ["Whether the respondents' offers constituted offers of compromise for the purposes of Pt 20, Div 4 of the Uniform Civil Procedure Rules 2005 (NSW)." 'Whether the offers constituted a genuine compromise rather than requiring capitulation by the applicants.' "Whether the applicants' rejection of the offers was unreasonable so as to justify indemnity costs." "Whether the applicants' conduct of the proceedings otherwise justified an order for indemnity costs."]

Ratio Decidendi

The offers did not provide a real compromise favourable to the applicants, except possibly as to costs, and the Court lacked material to assess any factual element of compromise or the respondents' allegations of unreasonable delay and expense. The offers accurately were characterised as requiring capitulation, their rejection was not unreasonable, and there was otherwise no basis to award indemnity costs.

Court Disposition

Application to vary the orders made on 10 November 2009 dismissed; no order as to costs of the application.

Orders

  • ['Dismiss the application to vary the orders made on 10 November 2009.' 'There is no order as to the costs of this application.']