Salih v Emirates (No 3) [2019] NSWDC 770

Salih v Emirates (No 3) [2019] NSWDC 770

Although the defendant's offer was genuine, clear, made when the plaintiff was conversant with the issues, and foreshadowed indemnity costs, the extent of the compromise was very limited because the defendant maintained its entitlement under an earlier costs determination, so that acceptance would effectively require the plaintiff to pay the defendant over $4,000. Having regard to that limited compromise, the evidence available at the time, and the plaintiff's prospects and damages issues, it was not unreasonable for the plaintiff to reject the offer. The discretion to order indemnity costs was therefore not exercised in the defendant's favour.

Jurisdiction
Australia
Judgment Date
20 December 2019
Procedural Posture
Civil Costs Application / Post Judgment Oral Application by the Defendant for Indemnity Costs Based on a Calderbank Letter
Outcome
Defendant's oral application for indemnity costs rejected; ordinary costs order confirmed.
Legal Topics
['indemnity Costs' 'calderbank Offers' 'costs Discretion' 'genuine Offer of Compromise' 'reasonableness of Rejection of Settlement Offer']
['civil Procedure' 'costs'] ['indemnity Costs' 'calderbank Offers' 'costs Discretion' 'genuine Offer of Compromise' 'reasonableness of Rejection of Settlement Offer']

Case Brief

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Procedural Posture

Civil Costs Application / Post Judgment Oral Application by the Defendant for Indemnity Costs Based on a Calderbank Letter

Legal Issues

  1. 1 ["Whether the defendant's 1 October 2019 settlement offer was a genuine Calderbank offer of compromise." 'Whether it was unreasonable for the plaintiff not to accept the offer, so as to justify indemnity costs from 11am on 2 October 2019.' 'Whether the existing ordinary costs order made on 27 November 2019 should be varied.']

Ratio Decidendi

Although the defendant's offer was genuine, clear, made when the plaintiff was conversant with the issues, and foreshadowed indemnity costs, the extent of the compromise was very limited because the defendant maintained its entitlement under an earlier costs determination, so that acceptance would effectively require the plaintiff to pay the defendant over $4,000. Having regard to that limited compromise, the evidence available at the time, and the plaintiff's prospects and damages issues, it was not unreasonable for the plaintiff to reject the offer. The discretion to order indemnity costs was therefore not exercised in the defendant's favour.

Court Disposition

Defendant's oral application for indemnity costs rejected; ordinary costs order confirmed.

Orders

  • ['The oral application of the defendant for indemnity costs is rejected.' 'The costs order made on 27 November 2019 is confirmed.' "The parties should confer as to the costs of the application. If agreement is reached, proposed consent orders should be forwarded to the Associate to Dicker DCJ. If agreement cannot be...