AW v WW (No 3) [2024] NSWSC 328

Supreme Court New South Wales

Medium Neutral Citation: AW v WW (No 3) [2024] NSWSC 328 Hearing dates: On the papers – written submissions 8, 18 and 25 March 2024 Date of orders: 28 March 2024 Decision date: 28 March 2024 Jurisdiction: Equity Before: Kunc J Decision: The plaintiff pay the defendant's costs of the proceedings on the ordinary basis up to and including 3 October 2023 and on the indemnity basis on and from 4 October 2023 Catchwords: COSTS – Calderbank offer - No issue of principle Cases Cited: AW v WW (No 2) [2024] NSWSC 146 AW v WW [2023] NSWSC 724 B v B [2017] NSWSC 1674 Category: Costs Parties: AW (Plaintiff) WW (Defendant) Representation: Counsel: R Allsop (Solicitor) (Plaintiff) RD Marshall SC/ NJ Olson (Defendant)

Solicitors: Swan Lawyers (Plaintiff) MacRae Lawyers (Defendant) File Number(s): 2023/80280 Publication restriction: None Decision under appeal Court or tribunal: Civil and Administrative Tribunal New South Wales Jurisdiction: Guardianship Division Date of Decision: 28 November 2022 Before: R H Booby, Senior Member (Legal) W E Blaxland, Senior Member (Professional) A Healy, General Member (Community) File Number(s): NCAT 2021/286566

JUDGMENT

Summary 1. The Court delivered its principal judgment rejecting AW's appeal on 23 February 2024: AW v WW (No 2) [2024] NSWSC 146 (Judgment). These reasons assume familiarity, and should be read with, the Judgment. Defined terms in the Judgment have the same meaning in these reasons. 2. For the reasons which follow, the Court has determined that AW should pay Mrs W's costs of the proceedings on the ordinary basis up to and including 3 October 2023 and on the indemnity basis on and from 4 October 2023 (including, for the avoidance of doubt, Mrs W's costs of the costs argument, also on the indemnity basis). The order for indemnity costs is based upon the Court's conclusion that AW unreasonably failed to accept a Calderbank offer made on behalf of Mrs W by letter dated 28 September 2023 (Offer). 3. These reasons resolve the costs of the proceedings in their entirety, that is to say including Lindsay J's determination of AW's application for leave to appeal on grounds other than a question of law: AW v WW [2023] NSWSC 724. 4. Mrs W sought this order: The plaintiff pay the defendant's costs of these proceedings including reserved costs and the costs of all applications and notices of motion on an indemnity basis as agreed or assessed. 1. AW did not dispute that he should pay Mrs W's costs of the proceedings on the ordinary basis, but resisted the application for indemnity costs. AW contended for these orders: (1) Subject to order 2, the plaintiff pay the defendant's costs of the proceedings on the ordinary basis as agreed or assessed, including the costs of the hearing before Lindsay J; (2) The defendant pay the plaintiff's costs in respect of the defendant's application for indemnity costs on the ordinary basis as agreed or assessed. 1. The parties agreed that the Court should deal with this question on the papers (subject to what I record in [16] below). AW's submissions were prepared by Mr R Allsop, Solicitor. Mrs W's submissions were prepared by Mr RD Marshall of Senior Counsel with Mr NJ Olson of Counsel.