Smith v Jones (No. 4) [2022] NSWSC 1715

Supreme Court New South Wales

Medium Neutral Citation: Smith v Jones (No. 4) [2022] NSWSC 1715 Hearing dates: 16 September 2022 and further written submissions up to 27 September 2022 Date of orders: 14 December 2022 Decision date: 14 December 2022 Jurisdiction: Common Law Before: Lonergan J Decision: Further to order 2 made in the proceedings on 9 September 2022, the plaintiff to pay the defendant's costs of the proceedings on an indemnity basis on and from 9 July 2021. Catchwords: CIVIL PROCEDURE – costs sought on an indemnity basis – Civil Procedure Act 2005 (NSW), s 98 – three Calderbank letters forwarded at different stages of the proceedings – whether it was unreasonable for the plaintiff to fail to accept the offers – where plaintiff's claim summarily dismissed due to being statute-barred – where the first offer was made three weeks after commencement of the proceedings – whether second offer was a compromise and/or provided adequate time for acceptance – fact that defendant indicated preparedness to bear own costs at early stage despite significant costs incurred by the time of the third letter – indemnity costs of the proceedings to be paid by the plaintiff from the date of the first offer Legislation Cited: Civil Procedure Act 2005 (NSW) Family Law Act 1975 (NSW) (Cth) Limitation Act 1969 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Calderbank v Calderbank [1975] 3 All ER 333 Commonwealth of Australia v Gretton [2008] NSWCA 117 County Securities Pty Limited v Challenger Group Holdings Pty Limited (No 2) [2008] NSWCA 273 Evans Shire Council v Richardson (No 2) [2006] NSWCA 61 Hancock v Arnold; Dodd v Arnold (No. 2) [2009] NSWCA 19 Hunter v Roberts (No 2) [2019] NSWCA 235 Oshlack v Richmond River Council (1988) 193 CLR 72; [1998] HCA 11 Penrith Rugby League Club Ltd Trading as Cardiff Panthers v Elliot (No 2) [2009] NSWCA 356 SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323 Smith v Jones [2022] NSWSC 1191 Smith v Jones (No. 2) [2022] NSWSC 1321 Smith v Jones (No. 3) [2022] NSWSC 1448 Category: Procedural rulings Parties: Helen Smith (Plaintiff) Stephen Jones (Defendant) Representation: Counsel: K Balendra (Plaintiff) E Anderson (Defendant)