Supreme Court New South Wales Medium Neutral Citation: Investwell Pty Ltd (In Liquidation) v Daryl Leon Roberts [2011] NSWSC 784 Hearing dates: 28 June 2011 Decision date: 22 July 2011 Jurisdiction: Equity Division - Corporations List Before: Hammerschlag J Decision: Defendant to pay the plaintiffs' costs of the proceedings up to 14 October 2009 on the ordinary basis, and thereafter on the indemnity basis but excluding the preparation of the court books Catchwords: COSTS - Calderbank letter - where plaintiffs made offer in terms significantly more favourable than the outcome achieved by the defendant - where defendant says he did not receive the offer but there is no issue that is was received by solicitors then acting for him - indemnity costs payable by the defendant from the date the offer expired Category: Procedural and other rulings Parties: Investwell Pty Ltd (In Liquidation) - Plaintiff Daryl Leon Roberts - First Defendant James Patrick Normoyle - First Respondent Anne-Maree Elizabeth Huxley - Second Respondent Representation: Counsel: C.M. Harris SC - Plaintiff D.L. Roberts - Self-Represented - First Defendant J. Rivett - First and Second Respondents Solicitors: Colin Biggers & Paisley - Plaintiff The Affordable Legal Company Pty Ltd - First and Second Respondents File Number(s): 2009/290079 Judgment 1HIS HONOUR: On 28 June 2011, I gave judgment ex tempore in favour of the plaintiffs and in favour of Mr Roberts against Mr Normoyle and Ms Huxley in respect of part of the amount claimed by Mr Roberts from them under the indemnity provided in the agreement. 2On 29 June 2011, the parties brought in Short Minutes giving effect to that judgment by orders requiring Mr Roberts to pay the company $164,306.83 plus interest of $41,076. Mr Normoyle and Ms Huxley accepted, through counsel, that the sole defence which they intended to promote would, if successful, leave a balance owing under the indemnity of $45,807. They were ordered to pay this amount to Mr Roberts. Upon Mr Roberts' undertaking to prosecute the balance of his claim against Mr Normoyle and Ms Huxley which was set down for hearing on 8 September 2011, the orders requiring payment by Mr Roberts to the company in excess of $45,807 were stayed until determination of the balance of his claim against Mr Normoyle and Ms Huxley or further order of the Court. 3The plaintiffs sought an order against Mr Roberts for costs on an indemnity basis based on his non-acceptance of a Calderbank offer of settlement made on 30 September 2009 under which the plaintiffs offered to accept $110,000 in full and final settlement plus legal costs to be agreed or assessed. The offer included a statement of the factors which the plaintiffs contended should impel Mr Roberts to accept it. The offer was open until 4.00 pm on 14 October 2009. 4The offer represented a true compromise which, had it been accepted, would have resulted in Mr Roberts doing significantly better than he has done. I ordered that Mr Roberts pay the plaintiffs' costs up to 14 October 2009 on the ordinary basis and thereafter on an indemnity basis, excluding the cost of the preparation of the court books, but made the order provisional because Mr Roberts was unrepresented and I thought that he should be given a further opportunity to consider whether there were any matters which he might wish to put in opposition to it. 5I gave Mr Roberts ten days to provide written submissions if he wished to resist the order, with the plaintiffs to respond within seven days on the basis that if submissions were received the order would be vacated and I would give separate judgment on a later date on the question of costs. 6Mr Roberts provided written submissions on 9 July 2011 and the plaintiffs responded on 14 July 2011. The only pertinent submission made by Mr Roberts is one to the effect that he had no knowledge or recollection of the offer. He says that he cannot find the email on his computer and has discovered that he has all emails missing from approximately 8 April 2009 to early 2010 "due to a data loss". This submission does not avail him because he accepts that the offer was received by solicitors then acting for him. Indeed, professional conduct rules obliged the plaintiffs' solicitors not to provide a copy of the offer directly to Mr Roberts. The plaintiffs could therefore not have done any more by way of communication to him of the offer. 7In the light of Mr Roberts' failure to accept the true and beneficial compromise offered, indemnity costs are warranted from 14 October 2009. It is not necessary to deal with why the costs of preparation of the court books will be excluded. That this should be so was accepted by the plaintiffs. 8The defendant is to pay the plaintiffs' costs of the proceedings up to 14 October 2009 on the ordinary basis, and thereafter on the indemnity basis but excluding the preparation of the court books. 9The exhibits are to be returned. ********** 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. Decision last updated: 26 July 2011