Zhang v Harmstorf (No 2) [2019] NSWDC 116

Zhang v Harmstorf (No 2) [2019] NSWDC 116

The plaintiff's 7 February 2019 email was a Calderbank offer, contained a significant genuine compromise, was clear despite not expressly mentioning interest and costs, was made shortly before hearing when the defendant knew the issues and evidence, foreshadowed reliance on costs consequences by referring to Calderbank v Calderbank, and the defendant had weak prospects on important construction points. In those circumstances it was unreasonable for the defendant not to accept the offer, so the plaintiff was entitled to ordinary costs up to and including 8 February 2019 and indemnity costs thereafter.

Jurisdiction
Australia
Judgment Date
10 April 2019
Procedural Posture
Civil Costs Application / Application by the Plaintiff for a Special Costs Order After Judgment Following Final Hearing
Outcome
Plaintiff's application for a special costs order granted.
Legal Topics
['calderbank Offer' 'indemnity Costs' 'ordinary Basis Costs' 'unreasonable Refusal of Settlement Offer' 'costs Discretion']
['civil Procedure' 'costs' 'contract'] ['calderbank Offer' 'indemnity Costs' 'ordinary Basis Costs' 'unreasonable Refusal of Settlement Offer' 'costs Discretion']

Case Brief

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Procedural Posture

Civil Costs Application / Application by the Plaintiff for a Special Costs Order After Judgment Following Final Hearing

Legal Issues

  1. 1 ["Whether the plaintiff's 7 February 2019 offer operated as a Calderbank offer." "Whether the plaintiff's offer contained a genuine element of compromise." 'Whether it was unreasonable for the defendant not to accept the Calderbank offer in all the circumstances.' "Whether the defendant should pay the plaintiff's costs on the ordinary basis up to and including 8 February 2019 and on an indemnity basis thereafter."]

Ratio Decidendi

The plaintiff's 7 February 2019 email was a Calderbank offer, contained a significant genuine compromise, was clear despite not expressly mentioning interest and costs, was made shortly before hearing when the defendant knew the issues and evidence, foreshadowed reliance on costs consequences by referring to Calderbank v Calderbank, and the defendant had weak prospects on important construction points. In those circumstances it was unreasonable for the defendant not to accept the offer, so the plaintiff was entitled to ordinary costs up to and including 8 February 2019 and indemnity costs thereafter.

Court Disposition

Plaintiff's application for a special costs order granted.

Orders

  • ['Vacate Order (3) made on 8 March 2019.' "Order the defendant to pay the plaintiff's costs of the proceedings on the ordinary basis up to and including 8 February 2019 and on an indemnity basis thereafter."]