Brian John Harris v Mark Harris (No 2) [2013] NSWSC 1157

Supreme Court New South Wales

Medium Neutral Citation: Brian John Harris v Mark Harris (No 2) [2013] NSWSC 1157 Hearing dates: 6 and 13 August 2013 (written submissions) Decision date: 21 August 2013 Jurisdiction: Equity Division Before: Kunc J Decision: Indemnity costs ordered Catchwords: COSTS - Calderbank letter - Indemnity costs - Whether refusal of offer unreasonable Legislation Cited: Contracts Review Act 1980 (NSW) Legal Aid Commission Act 1979 (NSW) Cases Cited: Calderbank v Calderbank (1975) 3 All ER 333 Commonwealth of Australia v Gretton [2008] NSWCA 117 Harris v Harris [2013] NSWSC 1010 Illawarra Hotel Co Pty Limited v Walton Construction Pty Ltd (No 2) [2013] NSWCA 211 Category: Costs Parties: Brian John Harris (Plaintiff) Mark Harris (Defendant) Representation: Counsel: Mr P. Batley (Plaintiff) Mr E. Yin (Solicitor) (Defendant) Solicitors: Legal Aid Commission NSW (Plaintiff) Mitry Lawyers (Defendant) File Number(s): 2011/330917 Publication restriction: No

Judgment

Summary 1On 30 July 2013 I delivered the principal judgment in this matter (Harris v Harris [2013] NSWSC 1010). Terms defined in that judgment have the same meaning in this judgment. 2I dismissed Brian's statement of claim and ordered him to pay Mark's costs. These reasons should be read in conjunction with the principal judgment. 3Mark has applied for indemnity costs, in reliance upon an offer to settle the proceedings from his solicitors to Brian's solicitors dated 10 April 2013 (the "Offer"). The Offer was made in accordance with the principles in Calderbank v Calderbank (1975) 3 All ER 333. The Offer was open for acceptance until 4.00pm on 23 April 2013. It was not accepted. 4I made orders for the parties to file submissions in relation to Mark's application. They have done so. The parties agreed that I should decide the application on the papers and that is what has occurred. 5Brian's failure to accept the Offer was objectively unreasonable. In the exercise of the Court's discretion Mark is entitled to an order that his costs of and incidental to the proceedings from and including 24 April 2013 be paid on the indemnity basis.