Bahamad v Wong (No. 2) [2020] NSWSC 1320

Supreme Court New South Wales

Medium Neutral Citation: Bahamad v Wong (No. 2) [2020] NSWSC 1320 Hearing dates: Completed on the papers in chambers. Date of orders: 29 September 2020 Decision date: 29 September 2020 Jurisdiction: Equity Before: Slattery J Decision: Indemnity costs order not made. Catchwords: CIVIL PROCEDURE – Costs orders – indemnity costs – in its first judgment the Court made a specified gross sum costs order under Civil Procedure Act 2005, s 98(4)(c) – the order followed the settlement of the plaintiffs' claim for relief under Conveyancing Act 1919, s 88K for the creation of an easement over the defendants' properties – the proceedings had settled after three days of hearing – the parties agreed that the plaintiffs pay the defendants' costs of the proceedings up to and including the first day of the hearing – in its first judgment the Court ordered the plaintiffs to pay the defendants' costs of the second and third days of hearing – the quantum of a specified gross sum costs order was fixed in the first judgment – but a Calderbank offer was made by the defendants prior to the costs argument and is now before the Court – whether an indemnity costs order should be made in respect of the contest over a specified gross sum cost order – whether sufficient time allowed to the offeree for acceptance of the offer – discussion of the difficulties encountered for an offeree, when no clear period for acceptance by the offeree is set out in the offer and the offer is withdrawn after a short period – whether the offeree had sufficient evidence and submissions to hand properly to consider the offer – discussion of the relationship between the complexity of the material to be considered by the offeree and the length of time allowed for acceptance of the offer - discussion of the form of Calderbank offers and of the need for them to clearly warn that non acceptance of the offer may result in an application for indemnity costs. Legislation Cited: Civil Procedure Act 2005, s 98(4)(c) Conveyancing Act 1919, s 88K Cases Cited: A v N [2012] NSWSC 549 Bahamad v Wong [2020] NSWSC 991 Calderbank v Calderbank [1975] 3 All ER 333 Castro v Hillery [2003] 1 Qd R 651 Chaina v Alvaro Homes Pty Limited [2008] NSWCA 353 Evans Shire Council v Richardson (No. 2) [2006] NSWCA 61 Equity 8 Pty Limited v Shaw Stockbroking Limited [2007] NSWSC 503 Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No. 2) (2005) 13 VR 435 Jones v Bradley (No 2) [2003] NSWCA 258 King Network Group Pty Limited v Club of the Clubs Pty Limited (No. 2) [2009] NSWCA 204 Leichhardt Municipal Council v Green [2004] NSWCA 341 Miwa Pty Ltd v Siantan Properties Pte Ltd (No. 2) [2011] NSWCA 344 Nationwide News Pty Limited v Naidu; ISS Security Pty Ltd v Naidu (2007) 71 NSWLR 471 Ng v Chong [2005] NSWSC 385 Ofria v Cameron (No. 2) [2008] NSWCA 242 Rockcote Enterprises Pty Limited v FS Architects Pty Limited (No. 2); Carelli v FS Architects Pty Ltd (No. 2) [2008] NSWCA 205 Rolls Royce Industrial Power (Pacific) Limited v James Hardie & Co Pty Limited (2001) 53 NSWLR 626 South Eastern Sydney Area Health Service v King [2006] NSWCA 2 Vale v Eggins (No. 2) [2007] NSWCA 12 Category: Costs Parties: First Plaintiff: Noureddine Bahamad Second Plaintiff: Afaf Bahamad First Defendant: Carson Wong Second Defendant: Siobhan Wong Third Defendant: Mark David Layson Fourth Defendant: Sally Rae Layson Representation: Counsel: Plaintiffs: G. Farland, M. Keene Defendants: J.A.C. Potts, A.R. Langshaw