Cumming v Sands [2001] NSWSC 706

Cumming v Sands [2001] NSWSC 706

The plaintiff's application for indemnity costs was refused because it was not unreasonable for the first defendant to refuse the Calderbank offer given the uncertainty of the outcome at the time. As for the Cherry v Boultbee issue, immediate payment by the plaintiff was unnecessary; deduction at the time of payment suffices unless unexpected exigencies arise.

Jurisdiction
Australia
Judgment Date
21 August 2001
Procedural Posture
Equity / Application for Indemnity Costs and Finalisation of Orders Following Substantive Judgments
Outcome
Plaintiff's application for indemnity costs refused. No order for immediate contribution to fund under Cherry v Boultbee; deduction at payment is sufficient.
Legal Topics
['costs' 'indemnity Costs' 'calderbank Offers' 'set Off' 'executors' 'application of Cherry V Boultbee Rule']
['equity' 'civil Procedure'] ['costs' 'indemnity Costs' 'calderbank Offers' 'set Off' 'executors' 'application of Cherry V Boultbee Rule']

Case Brief

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Procedural Posture

Equity / Application for Indemnity Costs and Finalisation of Orders Following Substantive Judgments

Legal Issues

  1. 1 ['Whether indemnity costs should be awarded to the plaintiff from the date of a Calderbank offer' 'Whether the rule in Cherry v Boultbee requires immediate payment of rent/occupation fee before plaintiff’s entitlement to a fund']

Ratio Decidendi

The plaintiff's application for indemnity costs was refused because it was not unreasonable for the first defendant to refuse the Calderbank offer given the uncertainty of the outcome at the time. As for the Cherry v Boultbee issue, immediate payment by the plaintiff was unnecessary; deduction at the time of payment suffices unless unexpected exigencies arise.

Court Disposition

Plaintiff's application for indemnity costs refused. No order for immediate contribution to fund under Cherry v Boultbee; deduction at payment is sufficient.

Orders

  • ["(1) Plaintiff's application for indemnity costs refused" '(2) Order for immediate contribution to fund not required by the rule in Cherry v Boultbee']