Luo v Carbone [2019] NSWSC 830

Luo v Carbone [2019] NSWSC 830

Because the proceedings settled without a determination on the merits and neither the plaintiff nor the first defendant failed to accept an offer that was substantially better than the settlement ultimately achieved, neither party established that the other acted so unreasonably as to justify a general or indemnity costs order. However, after the matter settled in principle, the first defendant's repeated failure to respond to proposed adjournments required the plaintiff to attend unproductive directions hearings and caused unnecessary costs, justifying a limited order that the first defendant pay the plaintiff's costs of those appearances.

Jurisdiction
Australia
Judgment Date
04 July 2019
Procedural Posture
Costs Application in Equity Proceedings Concerning Rescission of a Contract for the Sale of Land and Refund of a Deposit / On the Papers After Settlement by Deed of Settlement and Release
Outcome
Each party to pay their own costs, except that the first defendant is to pay the plaintiff's costs of attending specified directions hearings; existing costs orders remain in force.
Legal Topics
['proceedings Resolved Without Determination on the Merits' 'offers of Compromise' 'calderbank Offers' 'contract for Sale of Land' 'rescission' 'deposit Refund' 'directions Hearings']
['civil Procedure' 'costs' 'property Law' 'contract Law'] ['proceedings Resolved Without Determination on the Merits' 'offers of Compromise' 'calderbank Offers' 'contract for Sale of Land' 'rescission' 'deposit Refund' 'directions Hearings']

Case Brief

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Procedural Posture

Costs Application in Equity Proceedings Concerning Rescission of a Contract for the Sale of Land and Refund of a Deposit / On the Papers After Settlement by Deed of Settlement and Release

Legal Issues

  1. 1 ['Whether the plaintiff or first defendant acted so unreasonably in making or rejecting settlement offers that a general or indemnity costs order should be made after the proceedings settled without a determination on the merits.' 'Whether the terms of the Deed of Settlement and Release showed capitulation by the first defendant or that the plaintiff was almost certain to succeed at trial.' "Whether the first defendant's conduct in failing to respond to requests and attend or cooperate in directions hearings caused unnecessary costs." "Whether the second defendant's procedural irregularities warranted a costs order against it."]

Ratio Decidendi

Because the proceedings settled without a determination on the merits and neither the plaintiff nor the first defendant failed to accept an offer that was substantially better than the settlement ultimately achieved, neither party established that the other acted so unreasonably as to justify a general or indemnity costs order. However, after the matter settled in principle, the first defendant's repeated failure to respond to proposed adjournments required the plaintiff to attend unproductive directions hearings and caused unnecessary costs, justifying a limited order that the first defendant pay the plaintiff's costs of those appearances.

Court Disposition

Each party to pay their own costs, except that the first defendant is to pay the plaintiff's costs of attending specified directions hearings; existing costs orders remain in force.

Orders

  • ["The first defendant pay the plaintiff's costs of attending the directions hearings on 27 July, 28 September and 23 November 2018, and 1 February 2019." 'Otherwise, subject to the existing costs orders which remain in force, the parties pay their own costs of the proceedings, including their costs of the present...