Bird v Bird (No 5) [2012] NSWSC 734

Bird v Bird (No 5) [2012] NSWSC 734

The defendants were successful in defending Deborah's claim and were entitled to their costs on the ordinary party-party basis. Deborah had not succeeded on a clearly dominant or separable issue, and the defendants' failed factual assertions, adverse credit findings, and admissions in cross-examination did not amount to conduct warranting deprivation or apportionment of costs. The first and second defendants' 8 December 2011 offer was not a valid offer of compromise under r 20.26 because it dealt with costs by reserving liberty to seek a maximum costs order, and the Calderbank and open offers did not justify indemnity costs because non-acceptance was not shown to be unreasonable in the...

Jurisdiction
Australia
Judgment Date
27 June 2012
Procedural Posture
Consequential Orders as to Costs / Costs Determination Following Principal Judgment Delivered 5 June 2012
Outcome
Costs orders made on a party-party basis; indemnity costs refused.
Legal Topics
['costs of Proceedings' 'costs of Cross Claims' 'party Party Costs' 'indemnity Costs' 'offer of Compromise' 'calderbank Offer' 'apportionment of Costs' 'conduct of Parties']
['civil Procedure' 'costs'] ['costs of Proceedings' 'costs of Cross Claims' 'party Party Costs' 'indemnity Costs' 'offer of Compromise' 'calderbank Offer' 'apportionment of Costs' 'conduct of Parties']

Case Brief

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Procedural Posture

Consequential Orders as to Costs / Costs Determination Following Principal Judgment Delivered 5 June 2012

Legal Issues

  1. 1 ['Whether the successful defendants should be deprived of some or all of their costs because they failed on factual assertions, maintained issues, or engaged in conduct criticised by the plaintiff.' 'Whether costs should be apportioned to particular issues or aspects of evidence.' 'What costs orders should be made on the cross claims between the plaintiff and defendants and among defendants.' "Whether the first and second defendants' 8 December 2011 offer was a valid offer of compromise under the Uniform Civil Procedure Rules 2005." 'Whether non-acceptance of the Calderbank offers justified indemnity costs.']

Ratio Decidendi

The defendants were successful in defending Deborah's claim and were entitled to their costs on the ordinary party-party basis. Deborah had not succeeded on a clearly dominant or separable issue, and the defendants' failed factual assertions, adverse credit findings, and admissions in cross-examination did not amount to conduct warranting deprivation or apportionment of costs. The first and second defendants' 8 December 2011 offer was not a valid offer of compromise under r 20.26 because it dealt with costs by reserving liberty to seek a maximum costs order, and the Calderbank and open offers did not justify indemnity costs because non-acceptance was not shown to be unreasonable in the...

Court Disposition

Costs orders made on a party-party basis; indemnity costs refused.

Orders

  • ["The plaintiff pay the defendants' costs of the proceedings on a party-party basis." "The first and second defendants pay the plaintiff's costs of the first cross claim on a party-party basis, such costs to be offset against the costs payable by the plaintiff under order 1." "The first and second defendants pay on...