SKALKOS v ASSAF (NO 2) [2002] NSWCA 236

SKALKOS v ASSAF (NO 2) [2002] NSWCA 236

The appellants' failure to accept or respond to the respondents' Calderbank offer was unreasonable, the trial outcome and dismissed appeal were substantially more favourable to the respondents than the offer, and the appeal was a continuation of the claim to which the offer related. In the exercise of the Court's broad costs discretion, those circumstances justified ordering the appellants to pay the respondents' costs of the appeal on an indemnity basis.

Jurisdiction
Australia
Judgment Date
23 July 2002
Procedural Posture
Costs Application in Appeal / On the Papers After Dismissal of Appeal With Costs and Liberty to Apply for a Special Costs Order
Outcome
Application for indemnity costs granted.
Legal Topics
['indemnity Costs' 'calderbank Offer' 'offer of Compromise' 'costs Discretion' 'appeal Costs']
['civil Procedure' 'costs' 'defamation'] ['indemnity Costs' 'calderbank Offer' 'offer of Compromise' 'costs Discretion' 'appeal Costs']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Costs Application in Appeal / On the Papers After Dismissal of Appeal With Costs and Liberty to Apply for a Special Costs Order

Legal Issues

  1. 1 ['Whether the respondents should receive indemnity costs of the appeal because the appellants rejected an earlier Calderbank offer.' 'Whether the rejected settlement offer should be treated as applying to the claim through the appeal rather than only to the trial.' "Whether the appellants' conduct in rejecting or not responding to the offer was unreasonable in a way justifying indemnity costs." 'Whether the absence of a draft bill of costs should cause the Court to decline indemnity costs.']

Ratio Decidendi

The appellants' failure to accept or respond to the respondents' Calderbank offer was unreasonable, the trial outcome and dismissed appeal were substantially more favourable to the respondents than the offer, and the appeal was a continuation of the claim to which the offer related. In the exercise of the Court's broad costs discretion, those circumstances justified ordering the appellants to pay the respondents' costs of the appeal on an indemnity basis.

Court Disposition

Application for indemnity costs granted.

Orders

  • ["The appellants pay the respondents' costs of the appeal on an indemnity basis."]