Lawrence v Ciantar; Ciantar v Lawrence (No 2) [2019] NSWSC 722

Lawrence v Ciantar; Ciantar v Lawrence (No 2) [2019] NSWSC 722

The declaration should not include the words "or otherwise" because the agreed definition of the Agreement already included the oral terms, so the proposed declaration voiding interests given pursuant to the Agreement captured the relevant oral component and the additional words were unnecessary and beyond what was determined in the Principal Judgment. The 16 November 2017 offer was in the nature of a Calderbank offer because it was marked "Without Prejudice Save as to Costs" and made a settlement offer, but the defendants did not prove that the plaintiff's failure to accept it was unreasonable: it was made at a very early stage, before the plaintiff knew the full extent of the...

Jurisdiction
Australia
Judgment Date
14 June 2019
Procedural Posture
Equity Proceedings Concerning Declarations, Caveat Removal and Costs / On the Papers After Principal Judgment, Determining Form of Declarations and Costs
Outcome
Declarations made, caveat ordered removed, and costs order varied so that the plaintiff pays the defendants' costs on an ordinary basis up to 21 June 2018 and on an indemnity basis thereafter.
Legal Topics
['indemnity Costs' 'calderbank Offers' 'offers of Compromise' 'declarations' 'home Building Act 1989 (nsw)' 'caveats' 'building Contracts']
['costs' 'equity' 'property Law' 'building and Construction'] ['indemnity Costs' 'calderbank Offers' 'offers of Compromise' 'declarations' 'home Building Act 1989 (nsw)' 'caveats' 'building Contracts']

Case Brief

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Procedural Posture

Equity Proceedings Concerning Declarations, Caveat Removal and Costs / On the Papers After Principal Judgment, Determining Form of Declarations and Costs

Legal Issues

  1. 1 ['Whether the declaration that any interest in the Property was void should include the words "or otherwise" after the reference to the Agreement.' 'Whether the 16 November 2017 settlement offer was effective as a Calderbank offer.' 'Whether the plaintiff acted unreasonably in not accepting the 16 November 2017 offer so as to justify indemnity costs from that date.' "Whether indemnity costs should be ordered from 21 June 2018 following the plaintiff's non-acceptance of the 20 June 2018 offer of compromise."]

Ratio Decidendi

The declaration should not include the words "or otherwise" because the agreed definition of the Agreement already included the oral terms, so the proposed declaration voiding interests given pursuant to the Agreement captured the relevant oral component and the additional words were unnecessary and beyond what was determined in the Principal Judgment. The 16 November 2017 offer was in the nature of a Calderbank offer because it was marked "Without Prejudice Save as to Costs" and made a settlement offer, but the defendants did not prove that the plaintiff's failure to accept it was unreasonable: it was made at a very early stage, before the plaintiff knew the full extent of the...

Court Disposition

Declarations made, caveat ordered removed, and costs order varied so that the plaintiff pays the defendants' costs on an ordinary basis up to 21 June 2018 and on an indemnity basis thereafter.

Orders

  • ['Declare that, on the proper construction of the agreement comprised of the 24 October 2014 letter, the 12 November 2014 letter and oral terms, for works to be undertaken at 5 Angophora Crescent, Forestville NSW being Lot 2584 in DP752038 (together the Agreement), the cross-defendant bore the obligation of...