Ghunaim v Bart [No 2] [2006] NSWCA 82

Ghunaim v Bart [No 2] [2006] NSWCA 82

The respondent did not establish that the appellant's rejection of the Calderbank offer was unreasonable. The offer was made on the morning of the first day of trial and open for acceptance for only a few hours, the appellant was relying on experienced counsel, the difference between the offer and the final outcome was not great, and much of the trial cost had already been incurred. Accordingly the respondent was not entitled to indemnity or party-party costs of the trial based on the Calderbank offer.

Jurisdiction
Australia
Judgment Date
24 April 2006
Procedural Posture
Costs Application Following Appeal / Court of Appeal Determination on the Papers
Outcome
Costs orders made by Rein DCJ were set aside and the respondent was ordered to pay the appellant's costs of the trial.
Legal Topics
['calderbank Offer' 'offer of Compromise' 'indemnity Costs' 'party Party Costs' 'district Court Jurisdictional Limit']
['costs' 'civil Procedure'] ['calderbank Offer' 'offer of Compromise' 'indemnity Costs' 'party Party Costs' 'district Court Jurisdictional Limit']

Case Brief

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Procedural Posture

Costs Application Following Appeal / Court of Appeal Determination on the Papers

Legal Issues

  1. 1 ["Whether the appellant acted unreasonably in rejecting the respondent's Calderbank offer made on the morning of the first day of trial and open for acceptance for only two or three hours." 'Whether the respondent should receive costs of the trial, including indemnity costs or party-party costs, after making a Calderbank offer more favourable than the ultimate outcome.' "Whether the Court should entertain the respondent's application concerning costs of the vacated arbitration date when that matter was not canvassed before the trial judge."]

Ratio Decidendi

The respondent did not establish that the appellant's rejection of the Calderbank offer was unreasonable. The offer was made on the morning of the first day of trial and open for acceptance for only a few hours, the appellant was relying on experienced counsel, the difference between the offer and the final outcome was not great, and much of the trial cost had already been incurred. Accordingly the respondent was not entitled to indemnity or party-party costs of the trial based on the Calderbank offer.

Court Disposition

Costs orders made by Rein DCJ were set aside and the respondent was ordered to pay the appellant's costs of the trial.

Orders

  • ['Set aside the costs orders made by Rein DCJ on 17 October 2002.' "Order the respondent to pay the appellant's costs of the trial." 'Direct the respondent to inform the appellant by letter sent to his last known address of this judgment and orders.']