Chen v Caldieraro (No 2) [2013] NSWSC 5

Chen v Caldieraro (No 2) [2013] NSWSC 5

Although the second defendant's walk-away offer was a real and genuine compromise because it offered to forgo costs already incurred, the plaintiff discharged the burden of showing that rejection of the offer was not unreasonable in all the circumstances, including his severe spinal injuries, the importance of the road issue to his admission into the Lifetime Care and Support Scheme, and the fact that his claim was not hopeless. Indemnity costs were therefore refused. No costs order was made on the cross-claim because it raised no additional issues, the second defendant had assisted the first defendant in resisting the plaintiff's claim, and the plaintiff's lack of success rendered the...

Jurisdiction
Australia
Judgment Date
17 January 2013
Procedural Posture
Procedure Costs Offer of Compromise Application for Indemnity Costs / Costs Determined on Written Submissions After Judgment Delivered on 22 November 2012
Outcome
The plaintiff was ordered to pay the first and second defendants' costs on the ordinary basis; indemnity costs were refused; no order was made as to costs on the second defendant's cross-claim.
Legal Topics
['offer of Compromise' 'indemnity Costs' 'calderbank Offer' 'ordinary Basis Costs' 'cross Claim Costs']
['civil Procedure' 'costs'] ['offer of Compromise' 'indemnity Costs' 'calderbank Offer' 'ordinary Basis Costs' 'cross Claim Costs']

Case Brief

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Procedural Posture

Procedure Costs Offer of Compromise Application for Indemnity Costs / Costs Determined on Written Submissions After Judgment Delivered on 22 November 2012

Legal Issues

  1. 1 ["Whether the second defendant's offer of compromise was a real and genuine compromise giving rise to a presumptive entitlement to indemnity costs under UCPR r 42.15A." "Whether the plaintiff's rejection of the offer was unreasonable in all the circumstances." "Whether a costs order should be made on the second defendant's cross-claim against the first defendant."]

Ratio Decidendi

Although the second defendant's walk-away offer was a real and genuine compromise because it offered to forgo costs already incurred, the plaintiff discharged the burden of showing that rejection of the offer was not unreasonable in all the circumstances, including his severe spinal injuries, the importance of the road issue to his admission into the Lifetime Care and Support Scheme, and the fact that his claim was not hopeless. Indemnity costs were therefore refused. No costs order was made on the cross-claim because it raised no additional issues, the second defendant had assisted the first defendant in resisting the plaintiff's claim, and the plaintiff's lack of success rendered the...

Court Disposition

The plaintiff was ordered to pay the first and second defendants' costs on the ordinary basis; indemnity costs were refused; no order was made as to costs on the second defendant's cross-claim.

Orders

  • ["The plaintiff is to pay the first and second defendant's costs on the ordinary basis as agreed or assessed." "There be no order as to costs on the second defendant's cross-claim."]