Townsend v Townsend (No 2) [2001] NSWCA 145

New South Wales Court of Appeal

CITATION : Townsend v Townsend (No 2) [2001] NSWCA 145 FILE NUMBER(S) : CA 40344/00 HEARING DATE(S) : Written submissions. JUDGMENT DATE : 23 May 2001

PARTIES : Carolynne Townsend - Appellant David George Townsend - Respondent JUDGMENT OF : Giles JA

LOWER COURT JURISDICTION : District Court LOWER COURT 8434/98 FILE NUMBER(S) : LOWER COURT G S Hosking DCJ JUDICIAL OFFICER :

COUNSEL : G T W Miller QC & M A Clifford - Appellant B H Donovan QC & J O Anderson - Respondent SOLICITORS : Paul & Paul - Appellant Conway MacCallum - Respondent CATCHWORDS : COSTS - Calderbank letter - in substance, invited capitulation - appeal was arguable and decided by majority - no special costs order. ND. CASES CITED: Nil. DECISION : Respondent's application is dismissed with costs and the costs may be set off against the costs payable by the appellant to the respondent.

-IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40344/00 DC 8434/98 GILES JA

Wednesday 23 May 2001 Carolynne TOWNSEND v David George TOWNSEND (No 2) JUDGMENT (On costs) 1 GILES JA: Judgment in this appeal was given on 11 May 2001. By majority (Giles and Hodgson JJA, Davies AJA dissenting), the appeal was dismissed with costs. The respondent orally applied for an order that the costs be on an indemnity basis, relying on a Calderbank letter dated 30 May 2000. The parties agreed that the application should be dealt with on written submissions, and by myself exercising the powers of the Court of Appeal pursuant to s 46 of the Supreme Court Act 1970. 2 Written submissions were duly received. For the following reasons, I consider that the application should be dismissed. 3 The judgment appealed from was given on 20 April 2000. The appellant's notice of appeal with appointment was filed on 10 August 2000, so presumably a holding appeal was filed in mid-May 2000. 4 In the letter of 30 May 2000 the respondent offered to "agree to the discontinuance or dismissal of the appeal upon the basis that each party is to pay their own legal expenses of the appeal". The offer was open for acceptance for 28 days from 30 May 2000. The respondent reserved the right to use the letter on the question of costs, and gave notice that he would claim costs on an indemnity basis. 5 As at 30 May 2000 the respondent's costs of the appeal must have been minimal, and he would not have anticipated any significant costs within the next 28 days. There was no evidence suggesting otherwise. The offer had no real element of compromise, but invited capitulation by the appellant. 6 The trial judge had regarded the matter as "extremely closely run". Different considerations applied on appeal, but the fact that the decision on appeal was by majority shows that the appeal was anything but frivolous, and was not one which the appellant should lightly have abandoned. I do not think that she acted unreasonably or in a way which should bring adverse costs consequences when she declined to accept the respondent's offer. A Calderbank letter may be taken into consideration in exercising the discretion as to costs, but it does not automatically bring a more favourable costs order, and the letter of 30 May 2000 should not do so in this case. 7 The respondent's application is dismissed with costs, and the costs may be set off against the costs payable by the appellant to the respondent. ________