Singh v Singh (No 2) [2004] NSWSC 225

New South Wales Supreme Court

CITATION : Singh v Singh (No 2) [2004] NSWSC 225 HEARING DATE(S) : Written submissions: 08/03/04, 12/03/04, 17/03/04 JUDGMENT DATE : 26 March 2004 JURISDICTION: Equity Division JUDGMENT OF : Barrett J DECISION : Applications dismissed

CATCHWORDS : COSTS - Calderbank letters - whether offer open for one day only unreasonably rejected - whether proposal that other side capitulate involves compromise - PRACTICE AND PROCEDURE - whether undertaking as to damages given CASES CITED : Calderbank v Calderbank [1976] Fam 93 McKerlie v New South Wales (No 2) [2000] NSWSC 1159 Mahendra Pratap Singh - Plaintiff PARTIES : Manoj Baalman Singh - First Defendant Shareen Lata Singh - Second Defendant FILE NUMBER(S) : SC 1804/03 COUNSEL : Mr M K Rollinson - Plaintiff Mr T J Morahan - Defendants SOLICITORS : Ramrakha Jenkins - Plaintiff John Spence & Associates - Defendants

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION BARRETT J

FRIDAY, 26 MARCH 2004

1804/03 – MAHENDRA PRATAP SINGH v MANOJ BAALMAN SINGH & ANOR (NO 2)

JUDGMENT 1 In these proceedings, the plaintiff claimed that he was entitled to an interest in a property at Mount Druitt of which the defendants were the registered proprietors. In a judgment delivered on 3 March 2004 (Singh v Singh [2004] NSWSC 109], I dismissed that claim with costs. It remains to address two matters: first, whether, as the defendants submit, assessment of the costs awarded to them should be on the indemnity basis; and, second, whether there exists an undertaking as to damages given at an earlier stage of the proceedings in respect of which an inquiry by a Master should now be ordered. 2 The proposition that costs should be assessed on the indemnity basis is advanced by reference to two letters written by the defendants' solicitors to the plaintiff's solicitors. The letters are dated 21 February 2003 and 29 September 2003 respectively. Each conveyed an offer or proposal which was not accepted by the plaintiff. 3 The relevant part of the letter of 21 February 2003 is as follows: "6. As a result the son [defendant] considers that his father [plaintiff] has no moral or legal right to anything. However in the spirit of compromise he is prepared to offer your client $40,000.00 in full and final settlement of all claims arising out the subject matter covered by the caveat and/or correspondence between your office and the son and/or this office. 7. This offer is to lapse at 5pm on Tuesday 25/02/03. If accepted you should fax through a copy of an appropriate withdrawal of caveat in registrable form prior to this deadline." 4 The plaintiff's solicitors' response dated 24 February 2003 was: "We refer to your letter dated 21 February, 2003 which we received by fax on 24 February, 2003 at 12.56 p.m. Your deadline therefore is a little optimistic! We are referring this letter to our client for his instructions.