Fan v Han (No. 2) [2016] NSWSC 1651

Fan v Han (No. 2) [2016] NSWSC 1651

The plaintiff was entitled to costs as the substantially successful party because his alternative claims did not raise severable issues and neither basis was dominant. The first defendant's limited success on the cross-claim warranted a 25 per cent discount to ordinary costs up to and including 16 September 2016. From that date, the first defendant had acted unreasonably in rejecting the plaintiff's offer, which was at least effective as a Calderbank offer and was no less favourable to the plaintiff than the result obtained, so indemnity costs were ordered thereafter.

Jurisdiction
Australia
Judgment Date
16 November 2016
Procedural Posture
Costs Determination in Equity Proceedings / Costs Orders Consequent Upon Judgment in Fan V Han [2016] NSWSC 1488
Outcome
The first defendant was ordered to pay three-quarters of the plaintiff's costs up to and including 16 September 2016 and the plaintiff's costs on the indemnity basis thereafter.
Legal Topics
['costs Following Mixed Success' 'offers of Compromise' 'calderbank Offers' 'indemnity Costs' 'severable Issues' 'cross Claim Costs']
['practice and Procedure' 'costs' 'equity'] ['costs Following Mixed Success' 'offers of Compromise' 'calderbank Offers' 'indemnity Costs' 'severable Issues' 'cross Claim Costs']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Costs Determination in Equity Proceedings / Costs Orders Consequent Upon Judgment in Fan V Han [2016] NSWSC 1488

Legal Issues

  1. 1 ['What costs orders should be made following the judgment of 25 October 2016.' "Whether the plaintiff's success on only one of two alternative bases justified a discount or separate costs treatment." "Whether the first defendant's measure of success on the cross-claim should reduce the plaintiff's recoverable costs." 'Whether the plaintiff was entitled to indemnity costs from 16 September 2016 because the first defendant rejected an offer of compromise.' 'Whether the offer conformed with r 20.26 of the Uniform Civil Procedure Rules 2005, or alternatively operated as a Calderbank offer.']

Ratio Decidendi

The plaintiff was entitled to costs as the substantially successful party because his alternative claims did not raise severable issues and neither basis was dominant. The first defendant's limited success on the cross-claim warranted a 25 per cent discount to ordinary costs up to and including 16 September 2016. From that date, the first defendant had acted unreasonably in rejecting the plaintiff's offer, which was at least effective as a Calderbank offer and was no less favourable to the plaintiff than the result obtained, so indemnity costs were ordered thereafter.

Court Disposition

The first defendant was ordered to pay three-quarters of the plaintiff's costs up to and including 16 September 2016 and the plaintiff's costs on the indemnity basis thereafter.

Orders

  • ["Order that the first defendant pay three-quarters of the plaintiff's costs of the proceedings up to and including 16 September 2016." "Order that the first defendant pay the plaintiff's costs of the proceedings on the indemnity basis after 16 September 2016."]