The Nominal Defendant v Lane (No 2) [2005] NSWCA 36

The Nominal Defendant v Lane (No 2) [2005] NSWCA 36

The appellant's failure to accept the Calderbank offer did not warrant departure from the ordinary costs rule because, as at 9 September 2003, the appellant had a respectable basis to contest liability on the repair of minor defects issue under s 33(5), could expect a significant finding of contributory negligence, and had prospects of a more favourable damages assessment. Although the offer was a compromise measured against the eventual substituted judgment amount, it was generous to the respondent when measured against what might have eventuated at the time of the offer, so the appellant did not act unreasonably in refusing it.

Jurisdiction
Australia
Judgment Date
02 March 2005
Procedural Posture
Notice of Motion for Indemnity Costs Based on a Calderbank Offer / Court of Appeal Determination on Written Submissions After Judgment in the Appeal and Cross Appeal
Outcome
Notice of motion dismissed with costs.
Legal Topics
['calderbank Letter' 'indemnity Costs' 'failure to Accept Settlement Offer' 'costs Discretion' 'contributory Negligence' 'unregistered Motor Vehicle']
['costs' 'civil Procedure' 'motor Accidents Compensation'] ['calderbank Letter' 'indemnity Costs' 'failure to Accept Settlement Offer' 'costs Discretion' 'contributory Negligence' 'unregistered Motor Vehicle']

Case Brief

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Procedural Posture

Notice of Motion for Indemnity Costs Based on a Calderbank Offer / Court of Appeal Determination on Written Submissions After Judgment in the Appeal and Cross Appeal

Legal Issues

  1. 1 ['Whether the costs order made after the appeal and cross-appeal should be set aside and replaced with an order for party/party costs up to and including 8 September 2003 and indemnity costs thereafter.' "Whether the appellant acted unreasonably in failing to accept the respondent's Calderbank offer of $2,300,000 plus costs." 'Whether the Calderbank offer warranted departure from the ordinary rule as to costs.']

Ratio Decidendi

The appellant's failure to accept the Calderbank offer did not warrant departure from the ordinary costs rule because, as at 9 September 2003, the appellant had a respectable basis to contest liability on the repair of minor defects issue under s 33(5), could expect a significant finding of contributory negligence, and had prospects of a more favourable damages assessment. Although the offer was a compromise measured against the eventual substituted judgment amount, it was generous to the respondent when measured against what might have eventuated at the time of the offer, so the appellant did not act unreasonably in refusing it.

Court Disposition

Notice of motion dismissed with costs.

Orders

  • ['The notice of motion be dismissed with costs.']