Staunton v Cavallaro (No 3) [2013] NSWLC 6

Staunton v Cavallaro (No 3) [2013] NSWLC 6

The plaintiffs' 22 September 2011 offer was a genuine Calderbank offer, left open for a sufficient period, with no conditions, and with a warning that indemnity costs would be sought if the plaintiffs obtained a result in excess of the offer. The value of the judgment as at the date of the offer, including principal and interest, exceeded $70,000 inclusive of costs, and the plaintiffs would also have incurred costs by then. The defendants had sufficient time to consider the offer and their failure to accept it was unreasonable. It was therefore appropriate to order ordinary costs up to and including 22 September 2011 and indemnity costs from 23 September 2011.

Jurisdiction
Australia
Judgment Date
07 February 2013
Procedural Posture
Civil Costs Application / By Written Submissions After Principal Judgment, on Liberty to Apply for Further Orders as to Costs
Outcome
Plaintiffs' application for ordinary costs up to 22 September 2011 and indemnity costs from 23 September 2011 granted.
Legal Topics
['indemnity Costs' 'ordinary Basis Costs' 'calderbank Offers' 'offers of Compromise' 'costs Discretion']
['civil Procedure' 'costs'] ['indemnity Costs' 'ordinary Basis Costs' 'calderbank Offers' 'offers of Compromise' 'costs Discretion']

Case Brief

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Procedural Posture

Civil Costs Application / By Written Submissions After Principal Judgment, on Liberty to Apply for Further Orders as to Costs

Legal Issues

  1. 1 ["Whether the plaintiffs' costs order should be on an indemnity basis and, if so, for what period." "Whether the defendants' failure to accept the plaintiffs' 22 September 2011 Calderbank offer was unreasonable." "Whether the plaintiffs' offer, although inclusive of costs, could support an indemnity costs order." "Whether the defendants' 7 November 2012 offer should affect the costs order."]

Ratio Decidendi

The plaintiffs' 22 September 2011 offer was a genuine Calderbank offer, left open for a sufficient period, with no conditions, and with a warning that indemnity costs would be sought if the plaintiffs obtained a result in excess of the offer. The value of the judgment as at the date of the offer, including principal and interest, exceeded $70,000 inclusive of costs, and the plaintiffs would also have incurred costs by then. The defendants had sufficient time to consider the offer and their failure to accept it was unreasonable. It was therefore appropriate to order ordinary costs up to and including 22 September 2011 and indemnity costs from 23 September 2011.

Court Disposition

Plaintiffs' application for ordinary costs up to 22 September 2011 and indemnity costs from 23 September 2011 granted.

Orders

  • ['Further to order v) made 14 December 2012, it is ordered:' "That the defendants are to pay the plaintiffs' costs on the ordinary basis up to and including 22 September 2011." "That the defendants are to pay the plaintiffs' costs on an indemnity basis from 23 September 2011."]