Buono v Mazzella (No 2) [2016] NSWSC 891

Buono v Mazzella (No 2) [2016] NSWSC 891

The plaintiff's 2 December 2014 offer was a genuine offer of compromise and was more favourable than the outcome obtained by the defendant. The defendant had been represented until just before the hearing, would have received legal advice as to his prospects, and elected to stay in the premises despite being cognisant, in light of his unreliable evidence, that he had no legal right to do so. It was therefore not reasonable for him to reject the offer, warranting indemnity costs up to 26 May 2016.

Jurisdiction
Australia
Judgment Date
28 June 2016
Procedural Posture
Costs / Post Judgment Application for Indemnity Costs Determined by Written Submissions
Outcome
Indemnity costs ordered in favour of the plaintiff/first cross defendant.
Legal Topics
['indemnity Costs' 'calderbank Offer' 'reasonableness of Rejection' 'costs Discretion']
['costs' 'civil Procedure'] ['indemnity Costs' 'calderbank Offer' 'reasonableness of Rejection' 'costs Discretion']

Case Brief

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Procedural Posture

Costs / Post Judgment Application for Indemnity Costs Determined by Written Submissions

Legal Issues

  1. 1 ["Whether the plaintiff's 2 December 2014 offer was a genuine offer of compromise." 'Whether it was unreasonable for the defendant not to accept the offer.' 'Whether costs should be awarded on an indemnity basis.']

Ratio Decidendi

The plaintiff's 2 December 2014 offer was a genuine offer of compromise and was more favourable than the outcome obtained by the defendant. The defendant had been represented until just before the hearing, would have received legal advice as to his prospects, and elected to stay in the premises despite being cognisant, in light of his unreliable evidence, that he had no legal right to do so. It was therefore not reasonable for him to reject the offer, warranting indemnity costs up to 26 May 2016.

Court Disposition

Indemnity costs ordered in favour of the plaintiff/first cross defendant.

Orders

  • ["The cross claimant is to pay the first cross defendant's costs of the cross claim on an indemnity basis and the defendant is to pay the plaintiff's costs of these proceedings on an indemnity basis up until 26 May 2016."]