Xue v Karimbla Properties (No.45) Pty Ltd (No 2) [2023] NSWSC 795

Xue v Karimbla Properties (No.45) Pty Ltd (No 2) [2023] NSWSC 795

The defendants' walk away Calderbank offer involved a real and genuine compromise because, in context, the defendants were forgoing substantial costs in proceedings that were well advanced, had proceeded through pleadings, evidence exchange and mediation, and involved a monetary claim for return of a deposit and alleged damages. The offer was open for 28 days, clearly invoked Calderbank principles, foreshadowed reliance on costs, and identified weaknesses in the plaintiffs' case that were sufficiently apparent at the time. It was therefore unreasonable for the plaintiffs not to accept the offer, warranting indemnity costs from 8 February 2022.

Jurisdiction
Australia
Judgment Date
07 July 2023
Procedural Posture
Costs Application / On the Papers After Judgment Dismissing the Plaintiffs' Claim
Outcome
The first and second defendants' application for indemnity costs from 8 February 2022 was granted.
Legal Topics
['indemnity Costs' 'calderbank Offer' 'walk Away Offer' 'costs Discretion' 'unreasonable Refusal of Settlement Offer']
['civil Procedure' 'costs' 'equity'] ['indemnity Costs' 'calderbank Offer' 'walk Away Offer' 'costs Discretion' 'unreasonable Refusal of Settlement Offer']

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Procedural Posture

Costs Application / On the Papers After Judgment Dismissing the Plaintiffs' Claim

Legal Issues

  1. 1 ["Whether the defendants' 7 February 2022 Calderbank offer embodied a genuine compromise despite being a walk away offer." 'Whether it was unreasonable for the plaintiffs not to accept the Calderbank offer.' 'Whether the first and second defendants should receive indemnity costs from 8 February 2022.']

Ratio Decidendi

The defendants' walk away Calderbank offer involved a real and genuine compromise because, in context, the defendants were forgoing substantial costs in proceedings that were well advanced, had proceeded through pleadings, evidence exchange and mediation, and involved a monetary claim for return of a deposit and alleged damages. The offer was open for 28 days, clearly invoked Calderbank principles, foreshadowed reliance on costs, and identified weaknesses in the plaintiffs' case that were sufficiently apparent at the time. It was therefore unreasonable for the plaintiffs not to accept the offer, warranting indemnity costs from 8 February 2022.

Court Disposition

The first and second defendants' application for indemnity costs from 8 February 2022 was granted.

Orders

  • ["Order 2 of the orders made on 25 May 2023 be varied to provide that the plaintiffs pay the first and second defendants' costs of the proceedings from 23 September 2020 to 7 February 2022, on an ordinary basis." "Order 2 of the orders made on 25 May 2023 be varied to provide that the plaintiffs pay the first and...