Bathurst Real Estate Pty Ltd v Fairbrother (No 2) 408 [2022] NSWSC 408

Bathurst Real Estate Pty Ltd v Fairbrother (No 2) 408 [2022] NSWSC 408

The Calderbank offer made by the defendants was not a genuine compromise, was made too early in the proceedings with minimal costs incurred by both sides, and was open for acceptance for an unreasonably short period; thus, it was not unreasonable for BRE to refuse. Costs follow the event, with BRE to pay the defendants’ costs on the ordinary basis.

Jurisdiction
Australia
Judgment Date
07 April 2022
Procedural Posture
Equity / Post Judgment (costs Determination)
Outcome
Proceedings dismissed; Plaintiff to pay defendants' costs.
Legal Topics
['indemnity Costs' 'calderbank Offers' 'party/party Costs' 'bases of Quantification']
['costs'] ['indemnity Costs' 'calderbank Offers' 'party/party Costs' 'bases of Quantification']

Case Brief

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Procedural Posture

Equity / Post Judgment (costs Determination)

Legal Issues

  1. 1 ['Whether defendants are entitled to indemnity costs based on a Calderbank offer' 'Whether plaintiff acted unreasonably in refusing settlement offer']

Ratio Decidendi

The Calderbank offer made by the defendants was not a genuine compromise, was made too early in the proceedings with minimal costs incurred by both sides, and was open for acceptance for an unreasonably short period; thus, it was not unreasonable for BRE to refuse. Costs follow the event, with BRE to pay the defendants’ costs on the ordinary basis.

Court Disposition

Proceedings dismissed; Plaintiff to pay defendants' costs.

Orders

  • ['Proceedings dismissed.' "Plaintiff to pay the defendants' costs." 'Direct the exhibits be returned to the parties to be held in accordance with Practice Note SC Gen 18, para 28.']