Marcello Capone and Nicole Masson v Richard Lambert [2014] NSWCATCD 222

Marcello Capone and Nicole Masson v Richard Lambert [2014] NSWCATCD 222

The Tribunal was not prevented by s 58(3)(b) of the Bankruptcy Act 1966 from determining the costs application. Because the amount claimed exceeded $30,000 and the applicants were successful, the Tribunal had jurisdiction and grounds to award party and party costs. The applicants' Calderbank offer was a genuine compromise, and the respondent acted unreasonably in not accepting it because the offer was substantially below the claim and the applicants achieved a substantially more favourable result; indemnity costs from 2 November 2014 were therefore appropriate.

Jurisdiction
Australia
Judgment Date
02 December 2014
Procedural Posture
Costs Application in Consumer and Commercial Division Proceedings / Heard on the Papers After Final Orders
Outcome
Costs orders made in favour of the applicants.
Legal Topics
['party and Party Costs' 'indemnity Costs' 'calderbank Offers' 'bankruptcy of a Party' 'jurisdiction to Award Costs']
['costs' 'consumer and Commercial' 'bankruptcy'] ['party and Party Costs' 'indemnity Costs' 'calderbank Offers' 'bankruptcy of a Party' 'jurisdiction to Award Costs']

Case Brief

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Procedural Posture

Costs Application in Consumer and Commercial Division Proceedings / Heard on the Papers After Final Orders

Legal Issues

  1. 1 ["Whether s 58(3)(b) of the Bankruptcy Act 1966 prevented the Tribunal from proceeding with the applicants' costs application after the respondent became bankrupt." 'Whether the Tribunal had jurisdiction to award costs under the Consumer, Trader and Tenancy Act, 2001 and Consumer, Trader and Tenancy Tribunal Regulation 2009.' 'Whether the applicants, as successful parties, should receive costs on the usual basis.' "Whether the respondent's failure to accept the applicants' Calderbank offer justified indemnity costs from 2 November 2014."]

Ratio Decidendi

The Tribunal was not prevented by s 58(3)(b) of the Bankruptcy Act 1966 from determining the costs application. Because the amount claimed exceeded $30,000 and the applicants were successful, the Tribunal had jurisdiction and grounds to award party and party costs. The applicants' Calderbank offer was a genuine compromise, and the respondent acted unreasonably in not accepting it because the offer was substantially below the claim and the applicants achieved a substantially more favourable result; indemnity costs from 2 November 2014 were therefore appropriate.

Court Disposition

Costs orders made in favour of the applicants.

Orders

  • ["The respondent must pay the applicants' costs of and incidental to the proceedings, on a party and party basis, up to and including 1 November 2014 such costs, if not agreed, to be assessed on the basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004." "The respondent must pay the applicants'...