Dibbs v Emirates (No 2) [2015] NSWSC 1786

Dibbs v Emirates (No 2) [2015] NSWSC 1786

The defendant's offer was a genuine and clear attempt to resolve the proceedings, was open for a reasonable period, offered more than the damages that would have been awarded even if liability had been established, and warned that it would be relied on as to costs. Any asserted non-compliance with r 20.26 was technical and, in any event, the offer could operate as a Calderbank offer. It was unreasonable for the plaintiff not to accept the offer, justifying ordinary costs up to 16 October 2014 and indemnity costs from 17 October 2014.

Jurisdiction
Australia
Judgment Date
01 December 2015
Procedural Posture
Costs Application / Final Costs Orders on the Papers After Dismissal of the Plaintiff's Amended Summons and Verdict for the Defendant
Outcome
Costs ordered for the defendant, with ordinary costs up to and including 16 October 2014 and indemnity costs from and including 17 October 2014.
Legal Topics
['offer of Compromise' 'calderbank Offer' 'indemnity Costs' 'costs Following the Event']
['civil Procedure' 'costs'] ['offer of Compromise' 'calderbank Offer' 'indemnity Costs' 'costs Following the Event']

Case Brief

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Procedural Posture

Costs Application / Final Costs Orders on the Papers After Dismissal of the Plaintiff's Amended Summons and Verdict for the Defendant

Legal Issues

  1. 1 ["Whether the defendant was entitled to ordinary costs following the event after the plaintiff's proceedings were dismissed." "Whether the defendant's offer of 16 October 2014 complied with the Uniform Civil Procedure Rules 2005 as an offer of compromise." 'Whether any non-compliant offer could operate as a Calderbank offer.' "Whether it was unreasonable for the plaintiff not to accept the defendant's offer so as to justify indemnity costs from 17 October 2014."]

Ratio Decidendi

The defendant's offer was a genuine and clear attempt to resolve the proceedings, was open for a reasonable period, offered more than the damages that would have been awarded even if liability had been established, and warned that it would be relied on as to costs. Any asserted non-compliance with r 20.26 was technical and, in any event, the offer could operate as a Calderbank offer. It was unreasonable for the plaintiff not to accept the offer, justifying ordinary costs up to 16 October 2014 and indemnity costs from 17 October 2014.

Court Disposition

Costs ordered for the defendant, with ordinary costs up to and including 16 October 2014 and indemnity costs from and including 17 October 2014.

Orders

  • ["The plaintiff is to pay the defendant's costs of the proceedings, such costs to be assessed on an ordinary basis up to and including 16 October 2014." "The plaintiff is to pay the defendant's costs of the proceedings, such costs to be assessed on an indemnity basis from and including 17 October 2014."]