Ari v Decevic (No. 2) [2014] NSWSC 85

Ari v Decevic (No. 2) [2014] NSWSC 85

The February 2012 Calderbank offer was a genuine offer and the time allowed for acceptance was not shown to be insufficient because Mrs Decevic requested and received the extension sought. However, it was reasonable for Mrs Decevic not to accept that offer because Mr Crow's principal affidavit, which substantially illuminated the bank's internal record keeping practices and operating systems, had not yet been served, leaving her insufficiently equipped to assess the strength of the bank's case against her. Indemnity costs were therefore not ordered from February 2012, but were ordered from 6 September 2012 because Mrs Decevic conceded the offer of compromise authorised indemnity costs...

Jurisdiction
Australia
Judgment Date
18 February 2014
Procedural Posture
Costs Application Following Determination of an Amended Cross Claim / After Principal Judgment and Argument as to Costs and Final Orders
Outcome
The Cross-Claimant was unsuccessful on the Amended Cross-Claim. The Cross-Defendant was awarded costs on the ordinary basis up to 5 September 2012 and on the indemnity basis from 6 September 2012.
Legal Topics
['indemnity Costs' 'calderbank Offers' 'offer of Compromise' 'reasonableness of Rejection of Settlement Offer' 'ordinary Basis Costs']
['costs' 'civil Procedure'] ['indemnity Costs' 'calderbank Offers' 'offer of Compromise' 'reasonableness of Rejection of Settlement Offer' 'ordinary Basis Costs']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Costs Application Following Determination of an Amended Cross Claim / After Principal Judgment and Argument as to Costs and Final Orders

Legal Issues

  1. 1 ['Whether it was reasonable for Mrs Decevic not to accept the 27 February 2012 Calderbank offer.' 'Whether a walk away offer constituted a genuine offer of compromise.' "Whether Mrs Decevic had an appropriate opportunity to consider and deal with the February 2012 offer before substantive evidence, including Mr Crow's principal affidavit, had been served." 'Whether the bank should receive indemnity costs from February 2012 or from 6 September 2012.']

Ratio Decidendi

The February 2012 Calderbank offer was a genuine offer and the time allowed for acceptance was not shown to be insufficient because Mrs Decevic requested and received the extension sought. However, it was reasonable for Mrs Decevic not to accept that offer because Mr Crow's principal affidavit, which substantially illuminated the bank's internal record keeping practices and operating systems, had not yet been served, leaving her insufficiently equipped to assess the strength of the bank's case against her. Indemnity costs were therefore not ordered from February 2012, but were ordered from 6 September 2012 because Mrs Decevic conceded the offer of compromise authorised indemnity costs...

Court Disposition

The Cross-Claimant was unsuccessful on the Amended Cross-Claim. The Cross-Defendant was awarded costs on the ordinary basis up to 5 September 2012 and on the indemnity basis from 6 September 2012.

Orders

  • ['The Amended Cross-Claim is dismissed.' "Order the Cross-Claimant to pay the Cross-Defendants' costs on the ordinary basis up until 5 September 2012 and on the indemnity basis from 6 September 2012." 'Exhibits and subpoenaed material may be returned forthwith; and any exhibits returned must be retained by the...