Hali Retail Stores Pty Ltd v Hafaz [2007] NSWSC 427

New South Wales Supreme Court

CITATION : Hali Retail Stores Pty Ltd v Hafaz [2007] NSWSC 427

HEARING DATE(S) : 11 April 2007 JURISDICTION : Equity Division

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 11 April 2007

DECISION : Indemnity costs refused; plaintiff to pay defendant's costs on party-party basis

CATCHWORDS : COSTS – indemnity costs – Calderbank letter – where plaintiff failed to better defendant's offer – where offer was not and could not have been made as formal offer under rules

LEGISLATION CITED : (NSW) Supreme Court Rules 1970, Pt 51A, r 22(6) (NSW) Uniform Civil Procedure Rules 2005, Pt 20, r 26

CASES CITED : Calderbank v Calderbank [1976] Fam 93 Leichhardt Municipal Council v Green [2004] NSWCA 341

PARTIES : Hali Retail Stores Pty Ltd (plaintiff) Ayaz Hafaz (defendant)

FILE NUMBER(S) : SC 1715/07

COUNSEL : TGR Parker SC (plaintiff) CM Wilson (defendant)

SOLICITORS : Arnold Bloch Leibler (plaintiff) Peter D White & Co (defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DUTY JUDGE LIST

BRERETON J

Wednesday 11 April 2007

1715/07 Hali Retail Stores Pty Ltd v Ayaz Hafaz JUDGMENT (ex tempore) 1 HIS HONOUR: I decline to make an indemnity costs order. 2 On 23 March 2007 I gave judgment following a hearing of these proceedings on 21 March 2007. I ordered that the Plaintiff's claim for relief in paragraphs 1, 2, 3 and 3(a) of the Summons be dismissed. I declared that the Plaintiff was entitled to the return of the deposit. I ordered that the defendant do all things, execute all documents and give all authorities and directions necessary or convenient to procure the release of the deposit by the agent to the Plaintiff. I ordered that the Plaintiff, as the unsuccessful party, pay the Defendant's costs of the proceedings to date, and stood the balance of the Summons over to today for mention, anticipating that any party who wished to file any further evidence on the remaining issues would do so by that date. The Defendant foreshadowed an application for an order that the costs which the Plaintiff must pay the Defendant be assessed on the indemnity basis, and I indicated that I would deal with that application today. 3 That indemnity costs application is based on an offer made by the Plaintiff's solicitors to the Defendant's solicitors on 20 March 2007. The evidence does not indicate at what time on 20 March 2007 that offer was made, a fact not without significance as the hearing was set down for 21 March. The offer was in the form of a letter marked "without prejudice save as to costs", in which, while rejecting the Plaintiff's claim that there was an enforceable agreement for lease, the Defendant offered to permit the Plaintiff to take up a lease of the subject premises commencing on 1 August 2007, with rent to commence on 1 September 2007, for a term of three years with an option to renew for five years, and otherwise on uncontroversial terms. The offer provided that each party was to bear its own costs of the proceedings, and said that it was made in accordance with the principles in Calderbank v Calderbank [1976] Fam 93.