Richard Austin Ell v Stephen Maxwell Ell & Michael Richard Ell (No 2) [2014] NSWSC 520

Richard Austin Ell v Stephen Maxwell Ell & Michael Richard Ell (No 2) [2014] NSWSC 520

It is not appropriate to order the plaintiff to pay any part of the defendants' costs on the indemnity basis because the Calderbank offer did not constitute a genuine compromise and the rejection was not unreasonable in the circumstances; the plaintiff was entitled to his day in court and his claim was properly arguable.

Parties
Plaintiff: Richard Austin Ell; First Defendant: Stephen Maxwell Ell; Second Defendant: Michael Richard Ell; Third Defendant: Edmund Francis Brailey; Fourth Defendant: Catherine Mary Brailey
Jurisdiction
Australia
Judgment Date
05 May 2014
Procedural Posture
Costs Application / Post Substantive Judgment
Outcome
Plaintiff to pay defendants' costs on the ordinary basis.
Legal Topics
Costs, Calderbank Offer, Indemnity Costs, Party/party Costs
Civil Procedure Costs Calderbank Offer Indemnity Costs Party/party Costs

Case Brief

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Parties

Richard Austin Ell

Plaintiff

Stephen Maxwell Ell

First Defendant

Michael Richard Ell

Second Defendant

Edmund Francis Brailey

Third Defendant

Catherine Mary Brailey

Fourth Defendant

Procedural Posture

Costs Application / Post Substantive Judgment

Legal Issues

  1. 1 Whether the plaintiff should pay the defendants' costs on an indemnity basis due to rejection of a Calderbank offer
  2. 2 Whether the Calderbank offer constituted a genuine compromise

Ratio Decidendi

It is not appropriate to order the plaintiff to pay any part of the defendants' costs on the indemnity basis because the Calderbank offer did not constitute a genuine compromise and the rejection was not unreasonable in the circumstances; the plaintiff was entitled to his day in court and his claim was properly arguable.

Court Disposition

Plaintiff to pay defendants' costs on the ordinary basis.

Orders

  • Order the plaintiff to pay the defendants' costs of the proceedings on the ordinary basis.