Sweeney v He (No 2) [2022] NSWSC 854

Supreme Court New South Wales

Medium Neutral Citation: Sweeney v He (No 2) [2022] NSWSC 854 Hearing dates: On the papers; written submissions - 3, 21 and 22 June 2022 Date of orders: 28 June 2022 Decision date: 28 June 2022 Jurisdiction: Equity - Real Property List Before: Kunc J Decision: Plaintiff to pay defendants' costs on the indemnity basis pursuant to Calderbank offer Catchwords: COSTS – Party/party – Bases of quantification – Calderbank offer – No issue of principle Cases Cited: Sweeney v He [2022] NSWSC 655 Category: Costs Parties: Michael Howard Sweeney (Plaintiff) Leah Ying He (First Defendant) Yu Xiang Wang (Second Defendant) Representation: Counsel: Lishan Ang (Plaintiff) Kim Boettcher (First Defendant) Ruth Ferguson (Solicitor) (Second Defendant)

Solicitors: Maspero Legal (Plaintiff) Legal Aid NSW (First Defendant) File Number(s): 2020/0068692 Publication restriction: No

Judgment

Summary 1. The Court delivered its principal judgment in these proceedings on 24 May 2022 (Sweeney v He [2022] NSWSC 655) (the Principal Judgment). These reasons assume a familiarity, and should be read with, the Principal Judgment. Defined terms in the Principal Judgment have the same meaning in these reasons. 2. In the Principal Judgment, the Court determined that the proceedings should be dismissed. This judgment deals with the question of costs, which the parties agreed should be dealt with on the papers. 3. The Court received written submissions from Ms K Boettcher of Counsel which although titled "First Defendant's Outline of Submissions in relation to Costs" sought orders for both defendants. No separate submissions were filed on behalf of the second defendant. Written submissions were filed on behalf of the plaintiff, Michael, prepared by Mr L Ang of Counsel. 4. The defendants sought their costs of the proceedings on the indemnity basis by reference to offers made in two Calderbank letters. For the reasons which follow, the Court has concluded that Michael acted unreasonably in refusing to accept the first of those offers. Michael will therefore be ordered to pay the defendants' costs of the proceedings on the indemnity basis on and from the day after the first of the defendants' Calderbank offers expired.