Brian John Harris v Mark Harris (No 2) [2013] NSWSC 1157

Brian John Harris v Mark Harris (No 2) [2013] NSWSC 1157

Brian's refusal of the Offer was objectively unreasonable because the Offer was a reasonable genuine compromise, Brian's case remained fundamentally a claim for relief under the Contracts Review Act 1980 (NSW), and at the time of the Offer Brian's side knew or ought to have known of serious evidentiary problems concerning admission and weight of his evidence and proof that the transaction was unjust. The later narrowing of issues did not break the nexus between the Offer and the issues at hearing, and Brian's legally aided status did not disentitle Mark to indemnity costs.

Jurisdiction
Australia
Judgment Date
21 August 2013
Procedural Posture
Costs Application / Post Judgment Application for Indemnity Costs Following Dismissal of Statement of Claim
Outcome
Indemnity costs ordered from 24 April 2013.
Legal Topics
['calderbank Offer' 'indemnity Costs' 'unreasonable Refusal of Settlement Offer' 'legal Aid Costs Cap']
['costs' 'civil Procedure'] ['calderbank Offer' 'indemnity Costs' 'unreasonable Refusal of Settlement Offer' 'legal Aid Costs Cap']

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Procedural Posture

Costs Application / Post Judgment Application for Indemnity Costs Following Dismissal of Statement of Claim

Legal Issues

  1. 1 ["Whether Brian's failure to accept Mark's Calderbank offer dated 10 April 2013 was objectively unreasonable." 'Whether Mark should receive indemnity costs from 24 April 2013.' "Whether Brian's legally aided status and the Legal Aid Commission costs cap affected the exercise of the costs discretion."]

Ratio Decidendi

Brian's refusal of the Offer was objectively unreasonable because the Offer was a reasonable genuine compromise, Brian's case remained fundamentally a claim for relief under the Contracts Review Act 1980 (NSW), and at the time of the Offer Brian's side knew or ought to have known of serious evidentiary problems concerning admission and weight of his evidence and proof that the transaction was unjust. The later narrowing of issues did not break the nexus between the Offer and the issues at hearing, and Brian's legally aided status did not disentitle Mark to indemnity costs.

Court Disposition

Indemnity costs ordered from 24 April 2013.

Orders

  • ['Vacate order 2 made on 30 July 2013.' "The plaintiff pay the defendant's costs of and incidental to the proceedings up to and including 23 April 2013 on the ordinary basis and thereafter, including the defendant's application for indemnity costs, on the indemnity basis."]