Civil and Administrative Tribunal New South Wales Medium Neutral Citation: John Dawson v Steve Rosskelly and Sue Rosskelly t/as N & S Constructions [2014] NSWCATCD 78 Hearing dates: Decided on the papers Decision date: 16 May 2014 Before: R F Buckley, Senior Member Decision: The respondents are to pay the applicant's costs of HB 08/13255 as agreed or assessed on the basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004. The applicant is to pay the respondents' costs as agreed or assessed on an indemnity basis from 8 September 2007 to 21 July 2011. The parties are to pay their own costs from 4 April 2012. Insofar as any legal work or disbursement was performed or incurred before 8 September 2007, having regard to the operation of costs orders made in the Local and District Courts, I make no order for costs, otherwise than to reserve any claims as falling within orders 1 and 2 above as matters for assessment. Catchwords: Tribunal may award costs in such circumstances as it thinks fit Unreasonable refusal of Calderbank offer Legislation Cited: Consumer Trader and Tenancy Tribunal Act 2001(NSW) (repealed) Civil and Administrative Tribunal Act 2013(NSW) Consumer Trader and Tenancy Regulation 2009 (repealed) Uniform Civil Procedure Rules 2005 Home Building Act 1989 (NSW) Legal Profession Act 2004 (NSW) Cases Cited: Oshlack v Richmond RIver Council [1998] HCA 11 Calderbank v Calderbank (1975) 1 All AER 333 Giller v Procopets (No 2) [2009] VSCA 72 Van Zonneveld v Seaton [2005] NSWSC 175 Baulderstone Hornibrook Engineering Pty Limited v Gordian Runoff Limited (formerly GIO Insurance Limited) and Ors [2006] NSWSC 583 Commonwealth of Australia v Gretton [2008] NSWCA 117 Category: Principal judgment Parties: John Dawson (applicant) Steve Rosskelly and Sue Rosskelly t/as N & S Constructions (respondents) Representation: Knight Lawyers (applicant) Peter Merity Lawyers (respondent) File Number(s): HB 12/23225 Publication restriction: Unrestricted reasons for decision APPLICATION 1.The original application was the subject of orders and reasons published 25 October 2013. In accordance with an order of the Tribunal made on the same date, the parties filed and served submissions on the issue of costs. 2.Pursuant to the relevant transitional provisions of the Civil and Administrative Tribunal Act 2013(NSW), Schedule1,Division 3, clause 7(3), NCAT may exercise all the functions that the Consumer, Trader and Tenancy Tribunal exercised before its abolition, and apply the provisions of the Consumer, Trader and Tenancy Tribunal Act 2001 (repealed) (the "CTTTA") and the Consumer, Trader and Tenancy Tribunal Regulation 2009 (repealed) (the "CTTTR"). 3.The substantive application, the subject of this costs decision, was heard on remitter from the District Court, but had its origins in a comparatively modest building defects claim that arose out of a costs plus contract of 5 May 2005 between the applicant and the respondents, a husband and wife building partnership. For the purpose of background to this decision I repeat paragraphs 2 through 4 of the substantive decision. For the purpose of clause 20(4) of the CTTTR there is no dispute that, although failing to achieve the relevant money threshold on both occasions, the applicant's claim when heard and decided in 2011 and 2013 involved, "proceedings in respect of which the amount claimed or in dispute is more than $30,000..." 4.The essential chronology of the dispute of the litigated outcomes is as follows. i.15 February 2007 - the applicant commences a building defects claim against the respondents in the Local Court. ii.11 April 2007 - a cross-claim was filed by the respondents. iii.13 August 2007 - District Court Summons filed by applicant seeking transfer to District Court on grounds of monetary jurisdiction. iv.22 January 2008 - the Local and District Court proceedings were transferred to the Tribunal. v.1 June 2009 - applications HB 08/13249 and HB 08/13255 were first listed for hearing. On the first hearing date the respondents' debt claim of $6,646.00 was withdrawn. The presiding Member's encouragement of the parties to resolve the remaining building defects claim, one involving just over $100,000 was unsuccessful. vi.13 October 2009 - adjournment of part-heard hearing fixture. vii.22 February 2010 - further adjournment viii.30 March - 1 April 2010 - evidence completed. ix.25 November 2010 - final submissions lodged with Tribunal. x.6 June 2011- substantive decision in HB 08/13249. xi.20 July 2011- Tribunal orders the respondents to pay the applicants $1,892.70 (order a.), the applicant to pay 85 % of the respondents' costs on an indemnity basis from 20 February 2007 (order b.), with no orders as to costs of HB/13249 to 19 February 2007 or of application HB 08/13255 (order c.). xii.4 April 2012 - Olsson DCJ upholds the applicant's appeal and sets aside the Tribunal orders a. and b. and remits the matter to the Tribunal for the assessment of quantum, together with associated orders relating to costs, including a notation as to costs both past and future to be decided by the Tribunal. xiii.3 May 2013 - hearing of remitted application. xiv.25 October 2013 - respondents ordered to pay the applicant $14,042.70; submissions on costs orders sought. 5.Relevant to the present costs application, s.53 of the CTTTA is in the following terms: 53 Costs (1) Subject to this section and the regulations, the parties in any proceedings are to pay their own costs. (2) The Tribunal may, in accordance with the regulations, award costs in relation to any proceedings. (3) If costs are to be awarded by the Tribunal in accordance with the regulations, the Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis. (4) In this section, "costs" includes the costs of, or incidental to, proceedings. (5) This section does not apply in relation to proceedings under the Strata Schemes Management Act 1996 or the Community Land Management Act 1989 6.It should be noted at this point that sub-section 53(1) of the CTTTA provides a different starting presumption, than does Reg. 42.1 of the Uniform Civil Procedure Rules 2005 which is in the following terms: 42.1 General rule that costs follow the event (cf SCR Part 52A, rule 11) Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs. 7.The determination of any costs entitlement does not unconditionally follow the formula outlined in the UCPR, as frequently enunciated by way of a general rule in Oshlack v Richmond River Council [1998] HCA 11 at [67 - 69] per comments of McHugh J with whom Brennan CJ agreed. 8.The legislative basis for awarding costs in the Tribunal is the outline set out in s.53, governed by a consideration of the criteria imposed by Reg. 20 of the CTTTR, which is in the following terms: 20 Costs generally (1) This clause applies to the awarding of costs by the Tribunal as provided by section 53 of the Act. (2) The Tribunal may award costs in relation to proceedings in respect of which the amount claimed or in dispute is not more than $10,000, or in respect of which no amount is claimed or in dispute, only if the Tribunal is satisfied that there are exceptional circumstances that warrant the awarding of costs. (3) In any proceedings in respect of which the amount claimed or in dispute is more than $10,000 but not more than $30,000, the Tribunal may award costs in relation to the proceedings only if: (a) the Tribunal is satisfied that there are exceptional circumstances that warrant the awarding of costs, or (b) the Tribunal has made an order under section 30 (2) of the Act in relation to the proceedings. (4) In any proceedings in respect of which the amount claimed or in dispute is more than $30,000, the Tribunal may award costs in relation to the proceedings in such circumstances as it thinks fit. (5) Despite any other provision of this clause, the Tribunal may order: (a) that the costs of proceedings on an application for rehearing of a matter are, if the applicant fails to attend the hearing of the application, to be paid wholly or in part by the applicant, or (b) that the costs of any proceedings that the Tribunal considers to be frivolous, vexatious, misconceived or lacking in substance, or that otherwise should not be heard or proceeded with, be paid wholly or in part by the person who instituted the proceedings. (6) The amount of any costs under subclause (5) is to be substantiated in accordance with directions given by the Chairperson or, in the absence of such directions, in such manner as the Tribunal thinks fit. SUBMISSIONS 9.The issue of costs in this matter clearly dwarfs the final money outcome of the applicant's claim. What commenced as a relatively modest building defects application totalling $102,674.00, ended in the applicant recovering approximately 14% of that amount. As a consequence of the escalating impediment of legal costs, the negotiated resolution of the proceedings became, from before the transfer of the application to the Tribunal, increasingly unlikely. The history of the negotiated resolution of the application is critical to an evaluation of the competing submissions. 10.The original order made by Senior Member Durie in July 2011 ordered the applicant to pay the respondents' costs to the extent of 85% from February 2007 on an indemnity costs basis. In coming to this decision the Senior Member relied upon the respondents' submissions as to an offer made by the respondents on 6 February 2007. Although not specific, by implication it was held to be made in accordance with Calderbank principles and unreasonably refused by the applicant. That order was set aside by the decision of the District Court. 11.In the applicant's present submissions it is contended that the applicant was successful in relation to a critical issue in the remitted proceedings, that being the respondents were ordered to pay $12,150 with respect to the highly contentious painting defects, notwithstanding that the relevant sum agitated for by the applicant in the final Scott Schedule was $39,540. It is also contended that the applicant has significantly bettered the offer 6 February 2007 of $4,610.50, relied upon by Senior Member Durie to ground his costs determination. The applicant submits that the correct statement principle is the cost should follow the event, and the respondents should pay the applicant's costs of the proceedings on a party/party basis. The majority of the applicant's submissions then proceed to address the applicability or otherwise of the respondents' submissions concerning various Calderbank offers, and the limited extent of the applicant's recovery, both as to value and the number of successfully determined defect items. In the context of the settlement negotiations that ensued between the parties, the applicant's submissions note that an offer was made by him on 19 October 2006. It is conceded that the offer was not in a form that complies with Calderbank principles. The relevant offer was flawed in that it contains a condition that requires a party to whom the offer was not addressed, to commit to the payment of a sum in equal amounts with the respondents. It was an offer which could never be accepted by the respondents, and could not be the basis of a final resolution of the dispute between the applicant and the respondents. 12.Whereas the respondents no longer rely on the offer of 6 February 2007 to ground an order for costs, the fact that the respondents made that approach, was part of a one-sided negotiating process which evoked consistent negative responses from the applicant. 13.It is submitted by the respondents that from 10 May 2007 to 4 June 2009 five offers of settlement were made by the respondents, during which time it is submitted that the applicant's claim increased in quantum value from $60,000.00 to $102,000.00 without any evidence in support. 14.The first of the "Calderbank" offers now relied upon by the respondents was made under cover of a letter dated 10 May 2007 from their solicitors addressed to the applicant's solicitor in which it was stated that, "my client will pay your client the sum of $15,000.00, with each party to pay its own legal costs. This includes my client foregoing its cross-claim". The cross-claim ultimately withdrawn in June 2009 was for an amount of $6,646.00. There is no evidence of any positive counter offer to this proposal. 15.On 30 May 2007 by way of a further letter from the respondents' solicitors to the applicant's solicitor, a second approach was made to resolve the proceedings. The letter commences with the following: "I refer to my letter dated 10 May 2007, attempting to informally settle these proceedings on an economic basis and without admissions as to liability ... My client is prepared to make one last offer in an attempt to settle these proceedings. This offer is on the basis where my client will pay your client the sum of $18,000.00 with each party to pay its own legal costs in order to bring these proceedings to an end. This includes my client foregoing its cross-claim". This offer also was seemingly ignored by the applicant. In any event there is no evidence of a positive response, or any for that matter. 16.On 30 August 2007 a further letter was sent by the respondents' solicitor, initially noting the receipt of the summons and supporting documents filed by the applicant with the District Court on 13 August 2007. As a preamble to putting a further offer, the respondents' solicitor makes the following comment that the respondents', "opinion is that the claims made by your client for defective work will not be successful and that your client is risking an adverse result in these proceedings and will regret the legal and professional costs that will become payable by him after these proceedings have been resolved". The proposal then made is put on the primary basis of an offer of $35,000.00, with each party to pay its own legal and professional costs of both proceedings. The proceedings at that juncture were those commenced by the applicant in the Local and District courts, ignoring the exclusive jurisdiction of the Consumer Trader and Tenancy Tribunal to hear and determine building claims for breach of statutory warranty, as was the applicant's claim, under the terms of s48K(1) of the Home Building Act 1989 and s5(2) of the Consumer Trader and Tenancy Tribunal Act 2001. The costs that conceivably the applicant may have been entitled to at that juncture were those incurred in proceedings which were ultimately transferred to the Tribunal, with consequential costs orders being made against him, in favour of the respondents. The offer required a Deed of Settlement and Release to be entered into by the parties with each releasing the other from any present or future claims. In this context the respondents were to release the applicant from any liability for their debt claim. Further, condition of the offer was that the respondents would attend at the applicant's home to expect and make good, if required, alleged water ingress adjacent to the gym room corner window. 17.A fourth offer was made on 3 October 2008 by which the respondents were to forego their cross-claim, an entitlement to legal costs orders made in the Local and District Courts, and were to pay the applicant the sum of $20,000.00 with each party to pay its legal and professional costs of the Tribunal proceedings. That offer too was rejected without any positive response. 18.The fifth and final offer dated 4 June 2009 was an oral offer made by the respondent's counsel to the applicant's counsel and solicitor on the opening day of the hearing. Although there is evidence that an offer was made, the applicant's submissions concede that the precise terms of the offer of settlement are not known. 19.It is submitted on behalf of the respondents that they have, "at all material times, attempted to resolve the dispute between the parties, on a fair and reasonable basis, and the applicant home owner unreasonably rejected the offers made, increased his claim without justification, and relentlessly pursued the respondent builder through the courts and eventually the Tribunal". It is submitted that the offers of 10 May and 30 May 2007 were made at a time when the proceedings had just commenced and costs were minimal. 20.It is certainly the case that the offers made as outlined above were, on a raw money comparison more favourable than the final order obtained by the applicant in October last year. On a more detailed analysis however, it is contended by the applicant that all of the offers made by the respondents cannot be considered as made in accordance with Claderbank principles as they were made on an inclusive of costs basis rather than either a costs plus basis, or alternatively with the assignment of a specific amount for costs. The respondents submit in reply that this assertion is incorrect, as each of the offers recited above were made on the basis that each party was to bear their own costs. It is contended that in those circumstances the offers are acceptable as Calderbank offers as the court is in a position to determine whether it is unreasonable for the offeree to refuse the offer. Dealing with the point of distinction raised by the respondents' solicitor between an offer made inclusive of costs, and one made where each party is to pay its own costs, is in my view, a matter of semantics. They are in my view, one and the same. 21.Counsel's submissions, lodged on behalf of the applicant, referred to various dicta, as a consequence of which it is submitted that the five offers noted above are of no import whatsoever. 22.It is submitted on behalf of the applicant that I should follow the authority of the court in Van Zonneveld v Seaton [2005] NSWSC 175 where at paragraph 11 Campbell J recites the starting point referred to above as noted in Oshlack, but saliently in the same paragraph comments that, "there has been a disturbing tendency for the costs that are incurred to be out of all proportion to the amount that the Court ultimately awards. It is at paragraph 6 that His Honour refers to asserted Calderbank offers that are made on an inclusive of costs basis. His Honour relevantly states: "An offer inclusive of costs is not one which is in accordance with Part 22 Supreme Court Rules and so cannot trigger the costs consequences connected with an offer of compromise under Part 52A Rule 22. Nor is such an offer one which is suited to being an effective Calderbank offer, because it usually does not allow the court to decide whether the verdict eventually given is one under which the offeree fares worse than he or she would have done if he or she had accepted the offer". (emphasis added) 23. Further it is contended on behalf of the applicant that certain comments of Einstein J in Baulderstone Hornibrook Engineering Pty Limited v Gordian Run Off Limited and Ors [2006] NSWSC at [40] - [41] support a submission that an inclusive of costs offer is not qualified to be a Calderbank offer, "for the reason that the offeree is placed in a position of not being able to determine the appropriate amount to attribute to the substantive claim and the costs incurred in advancing it". 24.The excluding reason put forward by His Honour in Baulderstone differs to that enunciated by Campbell J in Van Zonneveld who took the view as highlighted above in paragraph 22. 25.In the present circumstances at all times the applicant was legally represented. He was at all times under a contractual obligation to his solicitor for an amount relevant to his solicitor/client costs and disbursements. At a point in time when the amount of such obligation became critical, it was peculiarly known to the client and his solicitor. The party/party indemnity component, as would be the subject of a Calderbank offer that is made on a plus costs basis, is from a judge's perspective, one which would of necessity be the subject of evidence and would inevitably be less than the solicitor/client bill. However, adopting the position advanced by Einstein J an offeree, when an offer is made plus costs, cannot immediately identify the quantifiable sum allowed by the offeror for party/party costs. It can be appreciated from the different approaches outlined in Van Zonneveld and Baulderstone that there are no prescribed or technical rules by which a Calderbank offer is to be evaluated, with the former, it is suggested allowing a degree of latitude to accommodate relevant circumstances. 26. The Victorian Court of Appeal in Giller v Procopets (No 2) [2009] VSCA 72, in considering offers of settlement made on an inclusive of costs basis, discussed the various factors which may be included in a court's appraisal of a Calderbank offer. The Court noted that an oral offer was not automatically excluded [11] and at [12] - [13] the court set out a series of non-exhaustive considerations: "11 Plainly, the oral offers made by the appellant to the respondent did not satisfy the requirements of Order 26.02 of the Supreme Court (General Civil Procedure) Rules 2005.[4] Further, Ms Giller's counsel properly conceded that the letter of 23 February was not an offer, but rather a record of offers made and rejected. On the assumption that the second of the oral offers amounted to a Calderbank offer, however, the question for consideration is whether, in all the circumstances, it was unreasonable for Mr Procopets to reject that offer.[5] 12 In Hazeldene's Chicken Farm v Victorian Workcover Authority,[6] this court said that The discretion with respect to costs must, like every other discretion, be exercised taking into account all relevant considerations and ignoring all irrelevant considerations. It is neither possible nor desirable to give an exhaustive list of relevant circumstances. At the same time, a court considering a submission that the rejection of a Calderbank offer was unreasonable should ordinarily have regard at least to the following matters: (a) the stage of the proceeding at which the offer was received; (b) the time allowed to the offeree to consider the offer; (c) the extent of the compromise offered; (d) the offeree's prospects of success, assessed as at the date of the offer; (e) the clarity with which the terms of the offer were expressed; (f) whether the offer foreshadowed an application for an indemnity costs in the event of the offeree's rejecting it.[7]" 13 It has been held that a technical approach should not be taken in determining whether a Calderbank offer has been made... " (emphasis added). 27.Ultimately, it becomes an issue as to whether it was unreasonable for the offeree, in all of the circumstances, to reject the relevant offer so as to ground an order for costs, indemnity or otherwise. In Commonwealth of Australia v Gretton [2008] NSWCA 117, Beazley JA at [41] - [46] discussed the basis of the principles that accompany an offer ostensibly made in accordance with Calderbank principles. Her Honour's citations and comments are apposite. "41 There are public policy considerations that underpin the making of favourable costs orders where a Calderbank offer has been made. In Leichhardt Municipal Council v Green [2004] NSWCA 341, Santow JA said at [14]: "... the practice of Calderbank letters is allowed because it is thought to facilitate the public policy objective of providing an incentive for the disputants to end their litigation as soon as possible. Furthermore, however, it can be seen as also influenced by the related public policy of discouraging wasteful and unreasonable behaviour by litigants." See also Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322. 42 The public policy in encouraging settlement also finds statutory encouragement: see the Civil Procedure Act, pa2005167/s56.html'>s 56. Section 131 of the Evidence Act also provides statutory acknowledgment that Calderbank offers may be received into evidence. 43 The making of a Calderbank offer does not automatically result in a favourable costs order, notwithstanding that the judgment is more favourable to the party making the offer than the terms of the offer. Rather, as Giles JA stated in SMEC Testing Services Pty Ltd v Campbelltown City Council at [37]: "...the question is whether the offeree's failure to accept the offer, in all the circumstances, warrants departure from the ordinary rule as to costs, and that the offeree ends up worse off than if the offer had been accepted does not of itself warrant departure ..." (Emphasis added) See also Jones v Bradley (No 2) at [8]. 44 Two general 'rules' have emerged relating to Calderbank offers, namely, that to justify the making of an order for costs on an indemnity basis, the offer must be a genuine offer of compromise, which it is unreasonable for the appellant not to accept: Herning v GWS Machinery Pty Ltd (No 2) [2005] NSWCA 375 at [4]- [5]; Leichhardt Municipal Council v Green at [21]-[24], [36]. However, as this Court (Santow, Bryson JJA, Stein AJA) pointed out in Leichhardt Municipal Council v Green at [8], the 'common law principles' that have been developed in relation to costs "operate merely as guides to how the discretion might appropriately be exercised". The principles or rules to which I have just referred fall within that category. 45 The discretion is to be exercised having regard to all the relevant circumstances in the case. The question that had been raised in Leichhardt Municipal Council v Green was whether there had been a genuine offer of compromise. As the Court said at [21]: "There is little appreciable difference between saying that an offer should not in the court's discretion attract costs sanctions in the circumstances and saying that an offer is not a genuine offer of compromise in the circumstances. Both depend upon a value judgment of the offer and the conduct of the parties in the circumstances of the claim." 46 The onus is on the party making a Calderbank offer to satisfy the court that it should exercise the costs discretion in its favour: see Evans Shire Council v Richardson (No 2) //www.austlii.edu.au/au/cases/nsw/NSWCA/2006/61.html'>[2006] NSWCA 61." 28.In evaluating the circumstances of the applicant's rejection of all of the offers noted above, without the advantage of assessing the applicant's oral evidence, by reason of the limited remitter, I have considered the comments of Senior Member Durie relevant to the applicant's evidence at paragraphs 25, 27, 46 and 70 of his substantive decision. The impression I glean from these comments is consistent with the absence of any counter proposal to the four offers made by the respondents between 10 May 2007 and 3 October 2008. The applicant's behaviour has been intransigent, and fixed in pursuing a judicial determination, even in September 2007 when his chosen judicial paths were legally untenable. 29.Could a court in the circumstances of the first offer of 10 May 2007 consider that the applicant acted unreasonably in rejecting the offer? It is put by the respondent that he did. Neither with respect to the first nor the second offer made some three weeks later, after some adjustment is made for legal costs, can it be emphatically asserted that the applicant has obtained a result less favourable than the relevant offers. 30.I also infer from the content of a letter from the respondents' solicitor of 30 August 2007 that the applicant received the preliminary expert defects report from Mr Grieve sometime towards the end of July 2007. The applicant did of course have available the first report of Mr Brian Thompson, a painting consultant whom he first consulted in August 2006, whose opinion formed a basis of my substantive decision. Given my views expressed in the previous paragraph, together with the applicant not having available to him all of his expert evidence, I am of the view that the applicant did not act unreasonably in rejecting the offers of 10 and 30 May 2007. 31.As to the offer of 30 August 2007 however, various features of it are significant in the present assessment: a.The applicant had access to the expert building report of Mr Grieve dated 26 July 2007. b.He was aware of the criticisms being made as to the content of such report by the respondents, borne out by various findings of Senior Member Durie and my findings rejecting Mr Grieve's opinion concerning the painting defects. c.The amount of the offer was significantly greater, by over $20,000, than that which was subsequently achieved by the applicant. d.The offer contained a release by the respondents of their cross-claim, subsequently valued at about $6,400.00. e.Whereas the offer suggested that each party pay its own costs, the proceedings then on foot had a jurisdictional impediment, which prevented any recovery of costs incurred to that date by the applicant, a fact subsequently borne out by adverse costs orders being made against the applicant in relation to proceedings commenced by him in both courts. f.The final component of the proposal, an offer by the applicant to carry out certain remedial building work had value. g.Seven days were allowed for the applicant to consider the offer, a time which was not unreasonable. 32.The comments that I have made in relation to the offer of 30 August 2007 cannot be applied to the final offer made in the series, that of 3 October 2008. In my view the legal costs incurred in the Tribunal from February 2008 to October 2008 would have been relatively modest. I infer that the applicant would have incurred a significant amount of costs for legal work done in the ill-fated Local and District Court proceedings, but a large part of such costs could not form any part of his evaluation of the reasonableness of the offer of October 2008. What also had to be taken into account was the added benefit proposed by the respondents, that apart from the offer of $20,000.00 with each party paying his own costs, the respondents offered to forego their cross-claim and the benefit of the two costs orders in their favour. In rejecting this offer, by comparison the applicant has achieved a final outcome, in my view, less advantageous than this offer, especially when regard is had to the diminishing value of money over the intervening period. 33.In accordance with clause 20(4) of the CTTTR, "the Tribunal may award costs in relation to the proceedings in such circumstances as it thinks fit." It is a wide discretion. 34.An overall impression of the conduct of the respondents, gleaned by a consideration of the record of correspondence indicates, not just a willingness but an anxiety of the respondents to get out of this litigation as soon as possible for a sum probably, and as it turns out, certainly greater than their liability. It was unreasonable of the applicant to reject negotiation in any meaningful way upon the offers, or at all. In my view, the applicant's behaviour can be seen as acting unreasonably in the rejection of the offers of 30 August 2007 and October 2008. It cannot be said that the modicum of success achieved by the applicant could fairly and justly entitle the applicant to the benefit of a costs order conservatively estimated in the seven figure range. Evidenced by his most recent submissions, the applicant has been disdainful of any attempt at a negotiated settlement. Alluding to part of the dicta relied upon by the applicant, with reference to all of the circumstances outlined above, adopting the condition imposed by Campbell J in the final sentence of paragraph 6 of his judgment in Van Zonneveld, that despite the usual impediment of a court not being able to decide whether an offeree fares worse or better than he would have done if he had accepted an inclusive of costs offer, I am satisfied that in these particular circumstances, particularly referrable to the offer of 30 August 2007, that I can do just that. 35.I have regard to the comments made by the previous Senior Member concerning the respondents' withdrawn application. I respectfully disagree with his approach. There should be in my view a discreet costs order. 36.But for the justified intervention of the District Court appeal proceedings, the added costs of the hearing of the remitted application would not have been incurred by either party. In the circumstances, the appropriate order is that the parties are to pay their own costs from 4 April 2012. 37.In summary I order as follows: a.The respondents are to pay the applicant's costs of HB08/13255 as agreed or assessed on the basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 (NSW). b.The applicant is to pay the respondents' costs as agreed or assessed on an indemnity basis from 8 September 2007 to 21 July 2011. c. The parties are to pay their own costs from 4 April 2012. d.Insofar as any legal work or disbursement that was performed or incurred before 8 September 2007, having regard to the Local and District Court costs orders, I make no order as to costs, otherwise than to reserve any claims as falling within orders 1 and 2 as matters of assessment. (signed) R F Buckley Senior Member Civil and Administrative Tribunal of New South Wales 16 May 2014 I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 31 July 2014