PM Sulcs & Associates Pty Ltd v Oliveri (No 2) [2009] NSWSC 485

New South Wales Supreme Court

CITATION : PM Sulcs & Associates Pty Ltd v Oliveri (No 2) [2009] NSWSC 485

HEARING DATE(S) : 2 June 2009

JUDGMENT DATE : 2 June 2009

JURISDICTION : Equity

JUDGMENT OF : Debelle AJ

EX TEMPORE JUDGMENT DATE : 2 June 2009

CATCHWORDS : PROCEDURE – Costs – Departing from the general rule – Calderbank offer by defendants – defendant has obtained orders better than offer – Order for costs on party and party basis to date of offer and on indemnity basis thereafter

LEGISLATION CITED : Legal Profession Act 1987

CATEGORY : Principal judgment

PARTIES : PM Sulcs & Associate Pty Limited (Plaintiff) Dominic Oliveri (Defendant)

FILE NUMBER(S) : SC SC 3548/2004

COUNSEL : R Aldridge (Plaintiff) GC LindsaySC/GPF Rundle (Defendant)

SOLICITORS : Connah, Steed & Co (PLaintiff) Penelope Purcell Solicitors (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

ACTING JUSTICE DEBELLE

TUESDAY, 2 JUNE 2009

3548/09 P M SULCS & ASSOCIATES PTY LIMITED v DOMINIC OLIVERI – Costs JUDGMENT (Ex tempore) 1 The defendant applies for an order that he be paid the costs of these proceedings on an indemnity basis. That claim is founded on an exchange of correspondence between the solicitors for the parties in 2005. By letter dated 3 June 2005 the then solicitors for the defendant offered to compromise the proceedings in a so-called Calderbank letter. The essence of the offer was that the plaintiff pay 95 percent of the costs and disbursements of the defendant as assessed on a quantum meruit. The letter goes on to state that the defendant would settle for an order that he have a verdict on either the claim or on the cross-claim. 2 The solicitors for the plaintiff replied on 17 June seeking clarification of the terms of the offer. That letter was answered by letter dated 1 July 2005 that said that the offer was as follows: "Our client is prepared to accept from your client 95 percent of costs assessed on a quantum meruit basis as determined by either a judicial officer or costs assessor."