Wassell v Ken Carr Bobcat & Tipper Hire Pty Ltd (No 2) [2021] NSWSC 1616

Wassell v Ken Carr Bobcat & Tipper Hire Pty Ltd (No 2) [2021] NSWSC 1616

It was reasonable for the plaintiffs to have rejected the defendant's Calderbank 'walk away' offer given their prospects of success, contestable issues in the case, and the absence of a genuine compromise; therefore, the plaintiffs' failure to accept the offer does not justify ordering indemnity costs.

Parties
First Plaintiff/cross Defendant on the First Cross Claim/cross Claimant on the Second Cross Claim: David Ian Wassell; Second Plaintiff/cross Defendant on the First Cross Claim/cross Claimant on the Second Cross Claim: Ya Jun Jiang Wassell; Defendant/cross Claimant on the First Cross Claim: Ken Carr Bobcat & Tipper Hire Pty Ltd; Third Cross Defendant on the First Cross Claim/first Cross Defendant on the Second Cross Claim: Registrar-General of New South Wales
Jurisdiction
Australia
Judgment Date
13 December 2021
Procedural Posture
Equity / Post Judgment Costs Determination
Outcome
Defendant's costs ordered to be assessed on the ordinary basis.
Legal Topics
Party/party Costs, Bases of Quantification, Ordinary Basis, Indemnity Basis, Calderbank Offer, Settlement Offer, Compromise
Costs Party/party Costs Bases of Quantification Ordinary Basis Indemnity Basis Calderbank Offer Settlement Offer Compromise

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Parties

David Ian Wassell

First Plaintiff/cross Defendant on the First Cross Claim/cross Claimant on the Second Cross Claim

Ya Jun Jiang Wassell

Second Plaintiff/cross Defendant on the First Cross Claim/cross Claimant on the Second Cross Claim

Ken Carr Bobcat & Tipper Hire Pty Ltd

Defendant/cross Claimant on the First Cross Claim

Registrar-General of New South Wales

Third Cross Defendant on the First Cross Claim/first Cross Defendant on the Second Cross Claim

Procedural Posture

Equity / Post Judgment Costs Determination

Legal Issues

  1. 1 Should costs be assessed on the ordinary or indemnity basis following the rejection of a Calderbank 'walk away' offer by the plaintiffs?

Ratio Decidendi

It was reasonable for the plaintiffs to have rejected the defendant's Calderbank 'walk away' offer given their prospects of success, contestable issues in the case, and the absence of a genuine compromise; therefore, the plaintiffs' failure to accept the offer does not justify ordering indemnity costs.

Court Disposition

Defendant's costs ordered to be assessed on the ordinary basis.

Orders

  • The costs of the defendant that the plaintiffs were ordered to pay by order 9 made on 11 November 2021 are to be assessed on the ordinary basis.