New South Wales Court of Appeal CITATION: Angel v Hawkesbury City Council (No 2) [2008] NSWCA 188 HEARING DATE(S): On the papers JUDGMENT DATE: 12 August 2008 JUDGMENT OF: Spigelman CJ; Beazley JA; Giles JA; Tobias JA; Campbell JA DECISION: Order (g) as set out in [144] of the principal judgment is varied so as to add thereto the words: "such costs to be paid on an indemnity basis as from 6 July 2006". CATCHWORDS: COSTS – Calderbank offer – indemnity costs LEGISLATION CITED: Uniform Civil Procedure Rules 2005, r 20.26 CATEGORY: Consequential orders CASES CITED: Calderbank v Calderbank [1975] 3 All ER 333; [1975] 3 WLR 586 PARTIES: Joan Ann Angel (Appellant) Hawkesbury City Council (Respondent) FILE NUMBER(S): CA 40337/07 COUNSEL: G B Hall QC; D Elliott (Appellant) G Laughton SC (Respondent) SOLICITORS: Gerard Malouf & Partners (Appellant) McCulloch & Buggy (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 3898/05 LOWER COURT JUDICIAL OFFICER: Sorby DCJ LOWER COURT DATE OF DECISION: 28 November 2006 - 2 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 403307/07 SPIGELMAN CJ BEAZLEY JA GILES JA TOBIAS JA CAMPBELL JA 12 August 2008 Joan Ann Angel v Hawkesbury City Council (No 2) Judgment 1 THE COURT: The Court delivered judgment in this matter on 25 June 2008, in which it gave judgment in favour of the appellant in the sum of $165,178.20 and ordered that the respondent pay the appellant's costs of the trial, the appeal and the cross-appeal. 2 On 29 June 2008, senior counsel for the appellant wrote to the Court seeking that the costs order be varied, so as to provide that the costs be payable on an indemnity basis as from 6 July 2006. The appellant relied upon a Calderbank offer made to the solicitors for the respondent on 5 July 2006: Calderbank v Calderbank [1975] 3 All ER 333; [1975] 3 WLR 586. 3 On 30 July 2008, senior counsel for the respondent informed the Court that the respondent does not oppose the order as to costs sought by the appellant. 4 In the normal course, the appellant was entitled, in accordance with the Uniform Civil Procedure Rules 2005, to the order for costs made by the Court, those costs being payable on the ordinary basis. There is well-established authority in this Court that a Calderbank offer is one of the circumstances in which the Court may exercise its discretion to make a costs order other than that prescribed by the rules. 5 In this case, the Calderbank offer was made nearly five months before trial and was in an amount that was well below the award of damages made by the Court. In those circumstances, and as the respondent's lack of opposition to the present application indicates, this is an appropriate case in which to make some different order than that prescribed by the rules. 6 One curiosity in the appellant's Calderbank offer should be remarked upon. The appellant's solicitor enclosed with the Calderbank offer an "Offer of Compromise by way of service for your attention". That Offer of Compromise was stated to be made in accordance with r 20.26 of the Uniform Civil Procedure Rules and was dated 5 June 2006. It was in the same amount as the Calderbank offer and was stated to be open for a period of 28 days from the date of the offer. However, by the time of service, the time for acceptance of the Offer of Compromise had already expired. There is no explanation as to why the solicitors sent the Offer of Compromise in those circumstances, but the fact that the Offer of Compromise had expired prior to service undoubtedly explains why the appellant seeks indemnity costs from one day after service of the Calderbank offer. 7 The Court makes the following order: Order (g) as set out in [144] of the principal judgment is varied so as to add thereto the words: " such costs to be paid on an indemnity basis as from 6 July 2006 ". ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.