Russell v Edwards & Anor [No 2] [2006] NSWCA 52

Russell v Edwards & Anor [No 2] [2006] NSWCA 52

The trial judge erred by ordering indemnity costs merely because the appellant had not accepted the respondents' Calderbank offer. Rejection of such an offer, even where the appellant was ultimately worse off, did not itself warrant indemnity costs without consideration of all the circumstances.

Jurisdiction
Australia
Judgment Date
30 March 2006
Procedural Posture
Civil Appeal Concerning Costs in a Negligence Personal Injuries Action / Court of Appeal Judgment on Costs
Outcome
The costs orders made by the trial judge were set aside and replaced with an order that the appellant pay the respondents the costs of the action.
Legal Topics
['calderbank Offer' 'indemnity Costs' 'costs Discretion' 'offer of Compromise']
['civil Procedure' 'costs' 'negligence'] ['calderbank Offer' 'indemnity Costs' 'costs Discretion' 'offer of Compromise']

Case Brief

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Procedural Posture

Civil Appeal Concerning Costs in a Negligence Personal Injuries Action / Court of Appeal Judgment on Costs

Legal Issues

  1. 1 ["Whether the trial judge erred by ordering indemnity costs from 3 July 2003 because the appellant did not accept the respondents' Calderbank offer." 'Whether rejection of a Calderbank offer, where the offeree ends up worse off than if the offer had been accepted, of itself warrants departure from the ordinary rule as to costs.']

Ratio Decidendi

The trial judge erred by ordering indemnity costs merely because the appellant had not accepted the respondents' Calderbank offer. Rejection of such an offer, even where the appellant was ultimately worse off, did not itself warrant indemnity costs without consideration of all the circumstances.

Court Disposition

The costs orders made by the trial judge were set aside and replaced with an order that the appellant pay the respondents the costs of the action.

Orders

  • ['The costs orders made by the trial judge be set aside.' 'In lieu thereof, the appellant pay the respondents the costs of the action.']