Dunphy v Russell (No 2) [2018] NSWSC 1053

Dunphy v Russell (No 2) [2018] NSWSC 1053

Neither the Calderbank nor the formal offer of compromise constituted a genuine offer of compromise, as both were in substance offers to capitulate and provided only negligible concessions to the defendant. Their rejection was not unreasonable, and the plaintiff is not entitled to indemnity costs.

Parties
Plaintiff: Brian Patrick Dunphy; Defendant: Michelle Catherine Russell (nee Murphy)
Jurisdiction
Australia
Judgment Date
12 July 2018
Procedural Posture
Equity / Application for Indemnity Costs Following Substantive Judgment
Outcome
Plaintiff's application for indemnity costs dismissed.
Legal Topics
Indemnity Costs, Offers of Compromise, Calderbank Offers, Costs Discretion
Civil Procedure Equity Indemnity Costs Offers of Compromise Calderbank Offers Costs Discretion

Case Brief

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Parties

Brian Patrick Dunphy

Plaintiff

Michelle Catherine Russell (nee Murphy)

Defendant

Procedural Posture

Equity / Application for Indemnity Costs Following Substantive Judgment

Legal Issues

  1. 1 Whether the plaintiff's offers were genuine offers of compromise
  2. 2 Whether the defendant unreasonably failed to accept the offers
  3. 3 Whether indemnity costs should be awarded

Ratio Decidendi

Neither the Calderbank nor the formal offer of compromise constituted a genuine offer of compromise, as both were in substance offers to capitulate and provided only negligible concessions to the defendant. Their rejection was not unreasonable, and the plaintiff is not entitled to indemnity costs.

Court Disposition

Plaintiff's application for indemnity costs dismissed.

Orders

  • Dismiss the Plaintiff's application for indemnity costs.
  • Each party bear his or her costs of the Plaintiff's application.