Au v Berlach (No 2) [2022] NSWSC 228

Au v Berlach (No 2) [2022] NSWSC 228

Dr Au unreasonably failed to accept the 5 February 2021 Calderbank offer. The offer was a serious and proper compromise, including because it allowed the fence to remain; Dr Au had access to lawyers familiar with the dispute; the time for compliance was reasonable as shown by subsequent removal of nearly all items within about a week; and, viewed as a whole, the Berlachs obtained a better outcome than acceptance of the offer despite the possible retention of three CCTV cameras. Dr Au was therefore ordered to pay the Berlachs' costs of the proceedings, including the summons and cross-summons, on the indemnity basis from 20 February 2021.

Jurisdiction
Australia
Judgment Date
04 March 2022
Procedural Posture
Costs in Equity Proceedings / After Principal Judgment; Orders to Give Effect to the Principal Judgment and Determination of Costs
Outcome
Plaintiff/cross-defendant ordered to pay the defendants/cross-claimants' costs on the indemnity basis from 20 February 2021; proceedings stood over for further directions.
Legal Topics
['indemnity Costs' 'calderbank Offer' 'party/party Costs' 'easement Dispute' 'injunctions']
['costs' 'equity'] ['indemnity Costs' 'calderbank Offer' 'party/party Costs' 'easement Dispute' 'injunctions']

Case Brief

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Procedural Posture

Costs in Equity Proceedings / After Principal Judgment; Orders to Give Effect to the Principal Judgment and Determination of Costs

Legal Issues

  1. 1 ["Whether a Calderbank offer made before commencement of proceedings could be taken into account in the Court's costs discretion." "Whether the Berlachs' 5 February 2021 offer was a genuine compromise." 'Whether the Berlachs achieved the same or a better outcome than the offer.' 'Whether it was unreasonable for Dr Au not to accept the offer.' 'Whether costs should be ordered on the indemnity basis from 20 February 2021.']

Ratio Decidendi

Dr Au unreasonably failed to accept the 5 February 2021 Calderbank offer. The offer was a serious and proper compromise, including because it allowed the fence to remain; Dr Au had access to lawyers familiar with the dispute; the time for compliance was reasonable as shown by subsequent removal of nearly all items within about a week; and, viewed as a whole, the Berlachs obtained a better outcome than acceptance of the offer despite the possible retention of three CCTV cameras. Dr Au was therefore ordered to pay the Berlachs' costs of the proceedings, including the summons and cross-summons, on the indemnity basis from 20 February 2021.

Court Disposition

Plaintiff/cross-defendant ordered to pay the defendants/cross-claimants' costs on the indemnity basis from 20 February 2021; proceedings stood over for further directions.

Orders

  • ["The plaintiff/cross-defendant is to pay the first defendant/cross claimant's and second defendant/cross claimant's costs of and incidental to these proceedings on and from 20 February 2021 on the indemnity basis." 'The proceedings are stood over for further directions to 25 March 2022 at 9:30 before me.' 'There is...