Bahamad v Wong (No. 2) [2020] NSWSC 1320

Bahamad v Wong (No. 2) [2020] NSWSC 1320

Indemnity costs were refused because the 8 November 2019 offer did not specify a clear time for acceptance, was withdrawn or replaced after a short period, was made before the plaintiffs had all relevant evidence and submissions, allowed insufficient time for evaluation of detailed costs material, and did not clearly state Calderbank consequences or foreshadow an indemnity costs application. The 14 November 2019 offer suffered the same warning defect and the defendants did not establish that it was better than the result in the first judgment because it also required payment of the defendants' costs of the specified gross sum application, which were not quantified.

Jurisdiction
Australia
Judgment Date
29 September 2020
Procedural Posture
Costs Application in Equity Proceedings / Second Judgment; Completed on the Papers in Chambers After Settlement and After a Specified Gross Sum Costs Order
Outcome
Defendants' claim for indemnity costs dismissed; no order as to costs of the specified gross sum costs dispute confirmed.
Legal Topics
['indemnity Costs' 'calderbank Offers' 'specified Gross Sum Costs Orders' 'reasonableness of Non Acceptance of Offer']
['civil Procedure' 'costs'] ['indemnity Costs' 'calderbank Offers' 'specified Gross Sum Costs Orders' 'reasonableness of Non Acceptance of Offer']

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Procedural Posture

Costs Application in Equity Proceedings / Second Judgment; Completed on the Papers in Chambers After Settlement and After a Specified Gross Sum Costs Order

Legal Issues

  1. 1 ["Whether the defendants should receive indemnity costs for the dispute concerning a specified gross sum costs order based on the plaintiffs' non-acceptance of the 8 November 2019 and 14 November 2019 offers." 'Whether the offers gave sufficient time and information for the plaintiffs to evaluate them.' 'Whether the offers adequately identified Calderbank consequences or foreshadowed an application for indemnity costs.' 'Whether the 14 November 2019 offer was shown to have been better than the result obtained in the first judgment.']

Ratio Decidendi

Indemnity costs were refused because the 8 November 2019 offer did not specify a clear time for acceptance, was withdrawn or replaced after a short period, was made before the plaintiffs had all relevant evidence and submissions, allowed insufficient time for evaluation of detailed costs material, and did not clearly state Calderbank consequences or foreshadow an indemnity costs application. The 14 November 2019 offer suffered the same warning defect and the defendants did not establish that it was better than the result in the first judgment because it also required payment of the defendants' costs of the specified gross sum application, which were not quantified.

Court Disposition

Defendants' claim for indemnity costs dismissed; no order as to costs of the specified gross sum costs dispute confirmed.

Orders

  • ["Dismiss the defendants' claim for an order for indemnity costs against the plaintiffs in respect of the costs of the dispute concerning a specified gross sum costs order." 'Confirm the notation made by the Court in order (2) of the orders made on 3 August 2020, that the Court makes no orders as to cost of the...