Milling v Hardie (No 2) [2014] NSWCA 285

Milling v Hardie (No 2) [2014] NSWCA 285

The respondents' rejection of the Calderbank offer was not unreasonable because the offer depended on mortgagee consent to subdivision and the appellant provided no evidence of the likelihood of that consent beyond an informal statement. Indemnity costs were therefore not justified. However, the appellant succeeded on the fundamental ownership issue in the proceedings and was, without substantial qualification, successful on the matters in issue, so he was entitled to his costs at first instance and on appeal on the ordinary basis.

Jurisdiction
Australia
Judgment Date
25 August 2014
Procedural Posture
Consequential Orders as to Costs / On the Papers After Appeal Judgment
Outcome
The respondents were ordered to pay the appellant's costs of the proceedings at first instance and on appeal on the ordinary basis.
Legal Topics
['costs Orders' 'indemnity Costs' 'ordinary Basis Costs' 'calderbank Offer' 'appeal Costs']
['practice and Procedure' 'costs'] ['costs Orders' 'indemnity Costs' 'ordinary Basis Costs' 'calderbank Offer' 'appeal Costs']

Case Brief

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Procedural Posture

Consequential Orders as to Costs / On the Papers After Appeal Judgment

Legal Issues

  1. 1 ["Whether the respondents' failure to accept the appellant's Calderbank offer at first instance justified an award of indemnity costs." 'Whether the appellant, having succeeded on appeal on the fundamental ownership issue, was entitled to costs at first instance and on appeal on the ordinary basis.']

Ratio Decidendi

The respondents' rejection of the Calderbank offer was not unreasonable because the offer depended on mortgagee consent to subdivision and the appellant provided no evidence of the likelihood of that consent beyond an informal statement. Indemnity costs were therefore not justified. However, the appellant succeeded on the fundamental ownership issue in the proceedings and was, without substantial qualification, successful on the matters in issue, so he was entitled to his costs at first instance and on appeal on the ordinary basis.

Court Disposition

The respondents were ordered to pay the appellant's costs of the proceedings at first instance and on appeal on the ordinary basis.

Orders

  • ["Order that the respondents pay the appellant's costs of the proceedings at first instance and on appeal."]