Ferella v Stomo (No. 2) [2017] NSWDC 61

Ferella v Stomo (No. 2) [2017] NSWDC 61

The defendant was entitled to indemnity costs because the plaintiffs did not accept a valid UCPR offer of compromise which the defendant bettered, unreasonably failed to accept the Calderbank offer, and conducted the litigation in a manner warranting departure from the ordinary costs rule. A gross sum costs order was appropriate because the dispute concerned a modest sum, further assessment would risk additional satellite litigation, the plaintiffs' history and conduct suggested further contest, and the court had sufficient evidence of the defendant's costs. The appropriate gross sum was $17,000, with an additional $1,000 for counsel's costs of the application.

Jurisdiction
Australia
Judgment Date
07 March 2017
Procedural Posture
Civil Costs Appeal and Costs Application / Application for Indemnity Costs and Gross Sum Costs Orders After Summons Dismissed
Outcome
Defendant's application granted; indemnity costs and gross sum costs orders made against the plaintiffs.
Legal Topics
['indemnity Costs' 'offer of Compromise' 'calderbank Offer' 'gross Sum Costs Order' 'costs Appeal' 'joint and Several Costs Liability']
['civil Procedure' 'costs' 'costs Assessment'] ['indemnity Costs' 'offer of Compromise' 'calderbank Offer' 'gross Sum Costs Order' 'costs Appeal' 'joint and Several Costs Liability']

Case Brief

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Procedural Posture

Civil Costs Appeal and Costs Application / Application for Indemnity Costs and Gross Sum Costs Orders After Summons Dismissed

Legal Issues

  1. 1 ['Whether the defendant was entitled to indemnity costs because the plaintiffs failed to accept an offer of compromise and the defendant obtained a better result.' "Whether the plaintiffs acted unreasonably in failing to accept the defendant's Calderbank offer and other settlement offers." "Whether the plaintiffs' conduct of the costs litigation independently justified indemnity costs." 'Whether the circumstances warranted a gross sum costs order under s 98 Civil Procedure Act 2005 (NSW).' "What gross sum should be ordered for the defendant's costs and counsel's costs of the application."]

Ratio Decidendi

The defendant was entitled to indemnity costs because the plaintiffs did not accept a valid UCPR offer of compromise which the defendant bettered, unreasonably failed to accept the Calderbank offer, and conducted the litigation in a manner warranting departure from the ordinary costs rule. A gross sum costs order was appropriate because the dispute concerned a modest sum, further assessment would risk additional satellite litigation, the plaintiffs' history and conduct suggested further contest, and the court had sufficient evidence of the defendant's costs. The appropriate gross sum was $17,000, with an additional $1,000 for counsel's costs of the application.

Court Disposition

Defendant's application granted; indemnity costs and gross sum costs orders made against the plaintiffs.

Orders

  • ["Pursuant to s 98 Civil Procedure Act 2005 (NSW), the plaintiffs are to pay the defendant's costs on an indemnity basis and by way of a gross sum of $17,000." "The plaintiffs are to pay the defendant's counsel's costs of this application, in the gross sum of $1,000."]