Xiang v Ward (No 5) [2016] NSWDC 449

Xiang v Ward (No 5) [2016] NSWDC 449

The defendant's conduct, including making service difficult and defaults causing adjournments, did not of itself justify indemnity costs from the commencement of the proceedings, and the Court was not comfortably satisfied that the defendant deliberately lied on oath. The plaintiff's offer of compromise was a...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
03 June 2016
Procedural Posture
Civil Costs Application / Successful Plaintiff's Application for a Special or Indemnity Costs Order After Judgment
Outcome
No special costs order was made; the defendant was ordered to pay the plaintiff's costs of the proceedings.
Legal Topics
['party/party Costs' 'indemnity Costs' 'offer of Compromise' 'calderbank Offer' 'service of Process' 'adjournments' 'false Statements' 'briginshaw Principle']
['costs' 'civil Procedure'] ['party/party Costs' 'indemnity Costs' 'offer of Compromise' 'calderbank Offer' 'service of Process' 'adjournments' 'false Statements' 'briginshaw Principle']

Source-derived case record

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

Civil Costs Application / Successful Plaintiff's Application for a Special or Indemnity Costs Order After Judgment

Legal Issues

  1. 1 ["Whether the defendant's conduct in making service difficult, obtaining multiple adjournments and allegedly making false statements justified an indemnity costs order from the commencement of the proceedings." "Whether the plaintiff's offer of compromise dated 22 February 2016 entitled the plaintiff to indemnity costs under the Uniform Civil Procedure Rules 2005, Pt 42." 'Whether the non-compliant offer of compromise could be treated as a Calderbank offer for costs purposes.']

Ratio Decidendi

The defendant's conduct, including making service difficult and defaults causing adjournments, did not of itself justify indemnity costs from the commencement of the proceedings, and the Court was not comfortably satisfied that the defendant deliberately lied on oath. The plaintiff's offer of compromise was a genuine compromise and the plaintiff obtained a better result, but the offer was non-compliant with Pt 42 because it allowed less than the required 28 days for acceptance, and it could not be treated as a Calderbank offer because it lacked the necessary costs-related characterisation and notice. Accordingly no special costs order was justified, but the defendant was ordered to pay...

Court Disposition

No special costs order was made; the defendant was ordered to pay the plaintiff's costs of the proceedings.

Orders

  • ["The defendant pay the plaintiff's costs of the proceedings."]