Aldag v Eistis (No 2) [2008] NSWDC 186

Aldag v Eistis (No 2) [2008] NSWDC 186

Costs should follow the event because the respondent succeeded on the Notice of Motion and there was no sufficient reason to depart from the usual order, despite the applicant's position as an uninsured defendant. Indemnity costs were refused because the Calderbank offer to walk away with each party paying its own costs was not a compromise in the circumstances, and it was not unreasonable for the applicant to reject it, particularly where it remained open for only seven days.

Jurisdiction
Australia
Judgment Date
29 August 2008
Procedural Posture
Costs Application Following Dismissal of Notice of Motion Seeking Personal Costs Order Against Solicitor / Judgment on Costs on Written Submissions
Outcome
Applicant ordered to pay the respondent's costs of the Notice of Motion; respondent's application for indemnity costs refused.
Legal Topics
['costs Following the Event' 'indemnity Costs' 'calderbank Offer' 'personal Costs Orders Against Solicitors' 'uninsured Defendant']
['civil Procedure' 'costs' 'legal Profession'] ['costs Following the Event' 'indemnity Costs' 'calderbank Offer' 'personal Costs Orders Against Solicitors' 'uninsured Defendant']

Case Brief

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Procedural Posture

Costs Application Following Dismissal of Notice of Motion Seeking Personal Costs Order Against Solicitor / Judgment on Costs on Written Submissions

Legal Issues

  1. 1 ["Whether the applicant should pay the respondent's costs of the Notice of Motion following dismissal of the application for a personal costs order against the respondent solicitor." "Whether the respondent's costs should be awarded on an indemnity basis by reason of the applicant's rejection of a Calderbank offer." 'Whether a “walk-away” offer with each party paying its own costs was a genuine compromise in the circumstances.' 'Whether seven days was a reasonable period for acceptance of the Calderbank offer.']

Ratio Decidendi

Costs should follow the event because the respondent succeeded on the Notice of Motion and there was no sufficient reason to depart from the usual order, despite the applicant's position as an uninsured defendant. Indemnity costs were refused because the Calderbank offer to walk away with each party paying its own costs was not a compromise in the circumstances, and it was not unreasonable for the applicant to reject it, particularly where it remained open for only seven days.

Court Disposition

Applicant ordered to pay the respondent's costs of the Notice of Motion; respondent's application for indemnity costs refused.

Orders

  • ["Amend order 3 of the judgment of 7 August 2008 to order the applicant to pay the respondent's costs of the Notice of Motion." "Respondent's application for costs to be paid on an indemnity basis refused."]