Simone v Kola (No 3) [2017] NSWSC 968

Simone v Kola (No 3) [2017] NSWSC 968

The plaintiff was entirely successful on the appeal and the defendants would have been better off had they accepted the December 2015 Calderbank offer. At the time of the offer the defendants had served their evidence, the plaintiff had served his evidence, the difficulties with the defendants' pleaded case were apparent, and Mrs Kola's liability to Mr Simone for the assessed costs pursued on the cross-claim could not be questioned. Mr Simone's offer not to pursue his costs of the cross-claim therefore involved a real compromise, and it was unreasonable for the defendants to reject it. The plaintiff was entitled to the costs orders sought, including indemnity costs below from 23 December...

Jurisdiction
Australia
Judgment Date
21 July 2017
Procedural Posture
Appeal; Costs Application / After Judgment on Appeal, Determination of Costs Orders
Outcome
Appeal allowed; Local Court orders set aside; statement of claim and cross-claim dismissed; costs ordered in favour of the plaintiff, including indemnity costs below from 23 December 2015.
Legal Topics
['indemnity Costs' 'calderbank Offers' 'departure From the General Rule as to Costs' 'costs on Appeal']
['civil Procedure' 'costs'] ['indemnity Costs' 'calderbank Offers' 'departure From the General Rule as to Costs' 'costs on Appeal']

Case Brief

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Procedural Posture

Appeal; Costs Application / After Judgment on Appeal, Determination of Costs Orders

Legal Issues

  1. 1 ["Whether the plaintiff's Calderbank offer involved a real compromise." "Whether it was unreasonable for the defendants to reject the plaintiff's Calderbank offer." "Whether the defendants should pay the plaintiff's costs below on an indemnity basis from 23 December 2015."]

Ratio Decidendi

The plaintiff was entirely successful on the appeal and the defendants would have been better off had they accepted the December 2015 Calderbank offer. At the time of the offer the defendants had served their evidence, the plaintiff had served his evidence, the difficulties with the defendants' pleaded case were apparent, and Mrs Kola's liability to Mr Simone for the assessed costs pursued on the cross-claim could not be questioned. Mr Simone's offer not to pursue his costs of the cross-claim therefore involved a real compromise, and it was unreasonable for the defendants to reject it. The plaintiff was entitled to the costs orders sought, including indemnity costs below from 23 December...

Court Disposition

Appeal allowed; Local Court orders set aside; statement of claim and cross-claim dismissed; costs ordered in favour of the plaintiff, including indemnity costs below from 23 December 2015.

Orders

  • ['Appeal allowed.' 'The orders made by Magistrate Bradd on 7 June 2016 and 8 November 2016 be set aside.' 'The Amended Statement of Claim filed on 22 May 2015 be dismissed.' 'The Statement of Cross-Claim filed on 7 July 2015 be dismissed.' 'The Defendants pay the costs below of the Plaintiff, on the ordinary basis...