Stevenson v Regents Park Sporting & Community Club Ltd [2012] NSWSC 736

Supreme Court New South Wales

Medium Neutral Citation: Stevenson v Regents Park Sporting & Community Club Ltd [2012] NSWSC 736 Hearing dates: Written submissions Decision date: 09 July 2012 Before: Fullerton J Decision: Plaintiff to pay indemnity costs Catchwords: COSTS - Calderbank principles Cases Cited: Calderbank v Calderbank [1975] 3 All ER 333 Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322 Herning v GWS Machinery Pty Ltd (No 2) [2005] NSWCA 375 Category: Costs Parties: Garry Stevenson (Plaintiff) Regents Park Sporting & Community Club Ltd (Defendant) Representation: Counsel: R de Meyrick (Plaintiff) C Harris SC (Defendant) Solicitors: Paris J Carr & Associates (Plaintiff) Colin Biggers & Paisley (Defendant) File Number(s): 2010/348324

Judgment 1HER HONOUR: On 4 May 2012 the substantive proceedings were resolved in the defendant's favour. At the request of the parties I reserved the question of costs. 2The parties furnished written submissions directed to the question whether the defendant's letter of 9 May 2011, which offered to settle the proceedings for $10,000 inclusive of costs, entitled it to an order that the plaintiff pays costs on an indemnity basis. The letter, which was expressly made in accordance with the principles in Calderbank (Calderbank v Calderbank [1975] 3 All ER 333) and open for a period of 14 days, drew the plaintiff's attention to the fact that his claim for damages did not exceed $70,000 even if breach were established (which was denied) and that were the offer rejected the letter would be tendered on the issue of costs. 3To make an offer which validly invokes the Calderbank principles the offer must be a genuine offer of compromise which it is unreasonable for the offeree not to accept (Herning v GWS Machinery Pty Ltd (No 2) [2005] NSWCA 375 at [4] - [5]). 4The defendant submitted that the terms of its letter of 9 May make it patent that the offer was a genuine offer to compromise the claim. It was also submitted that, having regard to the issues raised in the letter and the facts found in the disposition of the claim, it was unreasonable of the plaintiff not to have accepted that offer. The fact that he had secured other employment after the contract at the Bistro was terminated was also relied upon in support of the submission that it was unreasonable for him not to have accepted the offer of compromise. 5The plaintiff resisted an order that costs be paid on an indemnity basis by reference to what was said to be the state of the law regarding Calderbank style offers, in particular the views of the Court in Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322, that a Calderbank offer expressed to be inclusive of costs might not warrant departure from the usual basis upon which a successful party's costs are calculated, and that the appropriate approach is that the discretion be exercised with due regard to the circumstances of the particular case. 6After taking into account the various matters upon which the plaintiff relied in his written submission I am satisfied that the defendant is entitled to an order for indemnity costs and I so order.