Moshos v French (No. 3) [2014] NSWSC 1417

Moshos v French (No. 3) [2014] NSWSC 1417

Although the defendants' Calderbank offer was a genuine compromise and remained open for a reasonable period, indemnity costs were not warranted because the extent of compromise was not great, the offer was made when the defendants' evidence was incomplete, the plaintiff was then unrepresented, the offer did not foreshadow an indemnity costs application, and the plaintiff's case could not be considered to lack reasonable prospects. It was therefore not shown to be unreasonable for the plaintiff not to accept the offer, and the successful defendants were entitled only to ordinary costs of the proceedings.

Jurisdiction
Australia
Judgment Date
15 October 2014
Procedural Posture
Costs / On the Papers Following Determination of Separate Questions; Final Orders for Dismissal and Costs
Outcome
Proceedings dismissed; plaintiff to pay the defendants' costs of the proceedings on the ordinary basis; indemnity costs refused.
Legal Topics
['indemnity Costs' 'calderbank Offer' 'ordinary Costs' 'costs of Affidavit' 'costs Application']
['costs' 'civil Procedure'] ['indemnity Costs' 'calderbank Offer' 'ordinary Costs' 'costs of Affidavit' 'costs Application']

Case Brief

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Procedural Posture

Costs / On the Papers Following Determination of Separate Questions; Final Orders for Dismissal and Costs

Legal Issues

  1. 1 ["Whether the plaintiff's failure to accept the defendants' Calderbank offer was unreasonable so as to warrant indemnity costs." "Whether the defendants should be deprived of the costs of Mr French's affidavit sworn on 19 February 2014." 'Whether the defendants should pay the costs of the costs application.']

Ratio Decidendi

Although the defendants' Calderbank offer was a genuine compromise and remained open for a reasonable period, indemnity costs were not warranted because the extent of compromise was not great, the offer was made when the defendants' evidence was incomplete, the plaintiff was then unrepresented, the offer did not foreshadow an indemnity costs application, and the plaintiff's case could not be considered to lack reasonable prospects. It was therefore not shown to be unreasonable for the plaintiff not to accept the offer, and the successful defendants were entitled only to ordinary costs of the proceedings.

Court Disposition

Proceedings dismissed; plaintiff to pay the defendants' costs of the proceedings on the ordinary basis; indemnity costs refused.

Orders

  • ['That the proceedings be dismissed;' "That the plaintiff pay the defendants' costs of the proceedings."]