Segal v Commonwealth Bank of Australia [2016] NSWCA 90

Segal v Commonwealth Bank of Australia [2016] NSWCA 90

Indemnity costs were awarded to the second respondent for the costs of preparing and filing the 4 April 2016 affidavit and the appearance on 7 April 2016 as the appellant failed to notify of discontinuance, causing unnecessary expense. However, the overall conduct did not rise to the level justifying indemnity costs for the entire proceedings, nor did the rejected offers constitute a genuine compromise to justify such an order.

Parties
Appellant: Phillip Segal; First Respondent: Commonwealth Bank of Australia; Second Respondent: Elie Barel
Jurisdiction
Australia
Judgment Date
29 April 2016
Procedural Posture
Appeal / Cost Determination Following Discontinuance of Appeal
Outcome
Indemnity costs order in part; otherwise ordinary costs order confirmed
Legal Topics
Costs, Indemnity Costs, Discontinuance of Proceedings, Offers of Compromise, Calderbank Offers
Civil Procedure Costs Indemnity Costs Discontinuance of Proceedings Offers of Compromise Calderbank Offers

Case Brief

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Parties

Phillip Segal

Appellant

Commonwealth Bank of Australia

First Respondent

Elie Barel

Second Respondent

Procedural Posture

Appeal / Cost Determination Following Discontinuance of Appeal

Legal Issues

  1. 1 Whether the appellant should pay the second respondent's costs on an indemnity basis following discontinuance of the appeal
  2. 2 Whether the offers made by the second respondent constituted genuine offers of compromise justifying indemnity costs

Ratio Decidendi

Indemnity costs were awarded to the second respondent for the costs of preparing and filing the 4 April 2016 affidavit and the appearance on 7 April 2016 as the appellant failed to notify of discontinuance, causing unnecessary expense. However, the overall conduct did not rise to the level justifying indemnity costs for the entire proceedings, nor did the rejected offers constitute a genuine compromise to justify such an order.

Court Disposition

Indemnity costs order in part; otherwise ordinary costs order confirmed

Orders

  • Order the appellant to pay the second respondent's costs of preparing and filing his 4 April 2016 affidavit and of the appearance in this Court on 7 April 2016 as assessed or agreed on an indemnity basis.
  • Confirm the existing costs orders in these proceedings and, save as provided for in order 1 above, order the appellant to pay the balance of the second respondent's costs of the proceedings as assessed or agreed on the ordinary basis.