Kerr v Australian Executor Trustees (SA) Ltd; Australian Executor Trustees (SA) Ltd v Fuller and others trading as Sparke Helmore Lawyers (No 2) [2019] NSWSC 1438

Kerr v Australian Executor Trustees (SA) Ltd; Australian Executor Trustees (SA) Ltd v Fuller and others trading as Sparke Helmore Lawyers (No 2) [2019] NSWSC 1438

The Calderbank offer was a genuine compromise for a sum substantially below the judgment and was made when the issues and evidence were sufficiently clear, so indemnity costs from 20 December 2018 were appropriate. It was reasonable and fair to require AET to pay Sparke Helmore's costs of Mr Kerr's claim because AET had pleaded a proportionate liability defence and joined Sparke Helmore by cross-claim, making it reasonable for Mr Kerr to join and adopt those allegations to protect the Covenantholders' recovery. A short stay of 14 days, rather than 28 days, was granted to allow AET further time to consider its position.

Jurisdiction
Australia
Judgment Date
22 October 2019
Procedural Posture
Equity Commercial List Costs and Orders Following Judgment / On the Papers; Judgment Entered, Costs Determined and Judgment Stayed for 14 Days
Outcome
Judgment entered for the plaintiff against the first defendant, the plaintiff's claim against the second to sixty-first defendants dismissed, the cross-claim dismissed, costs orders made, and judgment stayed for 14 days.
Legal Topics
['party/party Costs' 'indemnity Costs' 'calderbank Offer' 'sanderson Order' 'proportionate Liability Defence' 'cross Claim Costs' 'stay of Judgment' 'gross Sum Costs Order']
['civil Procedure' 'costs' 'equity' 'commercial Litigation'] ['party/party Costs' 'indemnity Costs' 'calderbank Offer' 'sanderson Order' 'proportionate Liability Defence' 'cross Claim Costs' 'stay of Judgment' 'gross Sum Costs Order']

Case Brief

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Procedural Posture

Equity Commercial List Costs and Orders Following Judgment / On the Papers; Judgment Entered, Costs Determined and Judgment Stayed for 14 Days

Legal Issues

  1. 1 ['Whether the plaintiff should receive indemnity costs from 20 December 2018 because of a Calderbank offer made on 20 November 2018.' "Whether the first defendant should pay the second to sixty-first defendants' costs of the plaintiff's claim against them by a Sanderson order." 'Whether the judgment should be stayed to allow the first defendant time to consider an appeal.' 'Whether any application for a gross sum costs order under s 98(4)(c) of the Civil Procedure Act should be made within 28 days.']

Ratio Decidendi

The Calderbank offer was a genuine compromise for a sum substantially below the judgment and was made when the issues and evidence were sufficiently clear, so indemnity costs from 20 December 2018 were appropriate. It was reasonable and fair to require AET to pay Sparke Helmore's costs of Mr Kerr's claim because AET had pleaded a proportionate liability defence and joined Sparke Helmore by cross-claim, making it reasonable for Mr Kerr to join and adopt those allegations to protect the Covenantholders' recovery. A short stay of 14 days, rather than 28 days, was granted to allow AET further time to consider its position.

Court Disposition

Judgment entered for the plaintiff against the first defendant, the plaintiff's claim against the second to sixty-first defendants dismissed, the cross-claim dismissed, costs orders made, and judgment stayed for 14 days.

Orders

  • ['Judgment for the plaintiff against the first defendant in the sum of $76,619,978.42 inclusive of interest under s 100 of the Civil Procedure Act.' "The plaintiff's claim against the second to sixty-first defendants is dismissed." 'The cross-claim is dismissed.' "The first defendant pay the plaintiff's costs of the...