Fernandez v Perez (No 2) [2012] NSWSC 1602

Fernandez v Perez (No 2) [2012] NSWSC 1602

Indemnity costs were refused because neither Calderbank offer made it unreasonable for the plaintiffs to refuse settlement when assessed at the time, not with hindsight, and the second plaintiff's claim was not so lacking in merit from the outset as to justify indemnity costs. The defendant remained substantially successful overall and was entitled to party/party costs, but the second plaintiff was largely successful in resisting the summary judgment motion, warranting an order that the defendant pay half of those motion costs.

Jurisdiction
Australia
Judgment Date
17 December 2012
Procedural Posture
Costs Application / Costs Determination After Substantive Judgment Dismissing the Plaintiffs' Claim and the Cross Claim
Outcome
Plaintiffs ordered to pay the defendant's costs on a party/party basis, with the defendant to pay half of the second plaintiff's costs of the summary judgment motion; indemnity costs refused.
Legal Topics
['indemnity Costs' 'calderbank Letters' 'party/party Costs' 'summary Judgment Costs' 'cross Claim Costs']
['costs' 'civil Procedure'] ['indemnity Costs' 'calderbank Letters' 'party/party Costs' 'summary Judgment Costs' 'cross Claim Costs']

Case Brief

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Procedural Posture

Costs Application / Costs Determination After Substantive Judgment Dismissing the Plaintiffs' Claim and the Cross Claim

Legal Issues

  1. 1 ["Whether the plaintiffs' refusal of the Calderbank offer dated 17 May 2010 was unreasonable so as to warrant indemnity costs against the first plaintiff." "Whether the second plaintiff's claim was so lacking in merit from joinder on 24 September 2010 as to warrant indemnity costs." "Whether the plaintiffs' refusal of the Calderbank offer dated 19 July 2012 was unreasonable so as to warrant indemnity costs." "Whether any separate costs order should be made for the defendant's unsuccessful aspect of the cross claim." "Whether the defendant should pay the second plaintiff's reserved costs of the summary judgment motion."]

Ratio Decidendi

Indemnity costs were refused because neither Calderbank offer made it unreasonable for the plaintiffs to refuse settlement when assessed at the time, not with hindsight, and the second plaintiff's claim was not so lacking in merit from the outset as to justify indemnity costs. The defendant remained substantially successful overall and was entitled to party/party costs, but the second plaintiff was largely successful in resisting the summary judgment motion, warranting an order that the defendant pay half of those motion costs.

Court Disposition

Plaintiffs ordered to pay the defendant's costs on a party/party basis, with the defendant to pay half of the second plaintiff's costs of the summary judgment motion; indemnity costs refused.

Orders

  • ["The First Plaintiff pay the Defendant's costs of the proceedings on a party/party basis." "Subject to order 3, the Second Plaintiff pay the Defendant's costs of the proceedings on a party/party basis from 24 September 2010." "The Defendant pay half of the Second Plaintiff's costs of the motion for summary judgment...