Sihaphone & Anor v Baccam & Anor (No.2) [2021] NSWDC 593

Sihaphone & Anor v Baccam & Anor (No.2) [2021] NSWDC 593

The plaintiffs are not entitled to indemnity costs against the first defendant under the Calderbank offer, as its rejection was not unreasonable given its terms and circumstances. The second defendant is deprived of his costs up to the date of his late amendment, as the plaintiffs were entitled to proceed on the earlier admission of his involvement, but not otherwise. Conditions for a Sanderson order are not made out as the first defendant did not engage in conduct justifying liability for the second defendant's costs.

Parties
First Plaintiff: Ei Sihaphone; Second Plaintiff: Kham-Avone Sihaphone; First Defendant: Jade Baccam; Second Defendant: Lam Chanthapanya
Jurisdiction
Australia
Judgment Date
02 November 2021
Procedural Posture
Civil / Post Judgment Costs Application
Outcome
Plaintiffs’ application to vary the first costs order dismissed; application to vary the second costs order partly succeeds.
Legal Topics
Costs, Calderbank Offer, Indemnity Costs, Sanderson Order
Civil Procedure Costs Calderbank Offer Indemnity Costs Sanderson Order

Case Brief

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Parties

Ei Sihaphone

First Plaintiff

Kham-Avone Sihaphone

Second Plaintiff

Jade Baccam

First Defendant

Lam Chanthapanya

Second Defendant

Procedural Posture

Civil / Post Judgment Costs Application

Legal Issues

  1. 1 Whether plaintiffs are entitled to indemnity costs from the first defendant following rejection of a Calderbank offer
  2. 2 Whether the second defendant should be deprived of all or some of his costs despite being successful
  3. 3 Whether a Sanderson order should be made requiring the first defendant to pay the second defendant's costs

Ratio Decidendi

The plaintiffs are not entitled to indemnity costs against the first defendant under the Calderbank offer, as its rejection was not unreasonable given its terms and circumstances. The second defendant is deprived of his costs up to the date of his late amendment, as the plaintiffs were entitled to proceed on the earlier admission of his involvement, but not otherwise. Conditions for a Sanderson order are not made out as the first defendant did not engage in conduct justifying liability for the second defendant's costs.

Court Disposition

Plaintiffs’ application to vary the first costs order dismissed; application to vary the second costs order partly succeeds.

Orders

  • Order 2 made on 18 October 2021 is varied: Judgment for the second defendant against the plaintiffs with the plaintiffs to pay the second defendant's costs on and from 19 September 2021 as agreed or assessed; otherwise, parties to bear their own costs.
  • Plaintiffs’ notice of motion filed 25 October 2021 is otherwise dismissed.