Dobrohotoff v Bennic (No 2) [2013] NSWLEC 139

Dobrohotoff v Bennic (No 2) [2013] NSWLEC 139

None of the settlement offers justified departure from the ordinary costs order. The respondent's offers did not give the applicants a better result than they obtained by judgment and, in the case of the 19 April 2013 offer, gave insufficient reasonable time for consideration. The applicants' offers effectively required the respondent to capitulate and would have placed her in a worse position than the judgment, including because she obtained a stay of injunctive relief and successfully resisted the notification order. The refusal of the offers was not shown to be unreasonable. The unsuccessful amendment application was not discrete and severable and caused minimal additional time or...

Jurisdiction
Australia
Judgment Date
20 August 2013
Procedural Posture
Class 4 Costs Application / Notices of Motion Seeking Different Costs Orders After Substantive Declaratory and Injunctive Relief
Outcome
Both notices of motion for different costs orders were dismissed, with the respondent ordered to pay the applicants' costs of the proceedings up to and including 2 May 2013 on an ordinary basis.
Legal Topics
['calderbank Offers' 'indemnity Costs' 'ordinary Costs' 'costs Follow the Event' 'genuine Offer of Compromise' 'unreasonable Rejection of Settlement Offer' 'apportionment of Costs']
['costs' 'civil Procedure' 'planning and Environment Law'] ['calderbank Offers' 'indemnity Costs' 'ordinary Costs' 'costs Follow the Event' 'genuine Offer of Compromise' 'unreasonable Rejection of Settlement Offer' 'apportionment of Costs']

Case Brief

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Procedural Posture

Class 4 Costs Application / Notices of Motion Seeking Different Costs Orders After Substantive Declaratory and Injunctive Relief

Legal Issues

  1. 1 ['Whether either party should have costs paid on an indemnity basis because of Calderbank or settlement offers served before the hearing.' 'Whether the offers were genuine offers of compromise.' 'Whether rejection of the offers was unreasonable.' 'Whether costs should be apportioned for the unsuccessful application for leave to amend the summons.']

Ratio Decidendi

None of the settlement offers justified departure from the ordinary costs order. The respondent's offers did not give the applicants a better result than they obtained by judgment and, in the case of the 19 April 2013 offer, gave insufficient reasonable time for consideration. The applicants' offers effectively required the respondent to capitulate and would have placed her in a worse position than the judgment, including because she obtained a stay of injunctive relief and successfully resisted the notification order. The refusal of the offers was not shown to be unreasonable. The unsuccessful amendment application was not discrete and severable and caused minimal additional time or...

Court Disposition

Both notices of motion for different costs orders were dismissed, with the respondent ordered to pay the applicants' costs of the proceedings up to and including 2 May 2013 on an ordinary basis.

Orders

  • ["The applicants' notice of motion filed 22 May 2013 is dismissed with no order as to costs." "The respondent's notice of motion filed 16 May 2013 is dismissed with no order as to costs." "The respondent is to pay the applicants' costs of the proceedings up to and including 2 May 2013 on an ordinary basis." 'The...