Cunningham v Guardian Royal Financial Services Pty Ltd;; Miller v Guardian Royal Financial Services Pty Ltd;; Smallwood v Guardian Royal Financial Services Pty Ltd;; Smallwood v Guardian Royal Financial Services Pty Ltd;; Visini v Guardian Royal Financial Services Pty Ltd [2017] NSWSC 1057

Cunningham v Guardian Royal Financial Services Pty Ltd;; Miller v Guardian Royal Financial Services Pty Ltd;; Smallwood v Guardian Royal Financial Services Pty Ltd;; Smallwood v Guardian Royal Financial Services Pty Ltd;; Visini v Guardian Royal Financial Services Pty Ltd [2017] NSWSC 1057

The fifth defendant’s Calderbank offer was a genuine offer of compromise and it was unreasonable for the plaintiffs not to accept it, given the clear weakness of their claims and adequate opportunity to consider the offer. As a result, costs should be awarded to the fifth defendant on the ordinary basis to 3 February 2017 and on an indemnity basis thereafter.

Jurisdiction
Australia
Judgment Date
14 August 2017
Procedural Posture
Civil / Costs Application Following Judgment
Outcome
Application for indemnity costs granted in part; costs varied as set out in orders.
Legal Topics
['indemnity Costs' 'calderbank Offer' 'summary Dismissal' 'insurance Liability']
['equity' 'costs'] ['indemnity Costs' 'calderbank Offer' 'summary Dismissal' 'insurance Liability']

Case Brief

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Procedural Posture

Civil / Costs Application Following Judgment

Legal Issues

  1. 1 ["Whether the fifth defendant's Calderbank offer amounted to a genuine offer of compromise" 'Whether it was unreasonable for the plaintiffs not to accept the Calderbank offer' 'Appropriate basis for costs (indemnity vs ordinary)']

Ratio Decidendi

The fifth defendant’s Calderbank offer was a genuine offer of compromise and it was unreasonable for the plaintiffs not to accept it, given the clear weakness of their claims and adequate opportunity to consider the offer. As a result, costs should be awarded to the fifth defendant on the ordinary basis to 3 February 2017 and on an indemnity basis thereafter.

Court Disposition

Application for indemnity costs granted in part; costs varied as set out in orders.

Orders

  • ["Vary orders made on 12 July 2017 in each of proceedings 2015/00119249, 2015/00119340, 2015/00119375, 2015/00119459 and 2015/00119286, such that the plaintiffs pay the fifth defendant's costs on the ordinary basis to 3 February 2017 and on the indemnity basis on and from 4 February 2017 to 12 July 2017." "The...