Evans v Braddock (No 2) [2015] NSWSC 518

Supreme Court New South Wales

Medium Neutral Citation: Evans v Braddock (No 2) [2015] NSWSC 518 Hearing dates: 29 April 2015 Decision date: 07 May 2015 Jurisdiction: Equity Division Before: Hallen J Decision: The court orders: (a) The first Plaintiff is to pay the Defendants' costs and disbursements of the proceedings, calculated on the indemnity basis, from 13 August 2013. (Costs orders made prior to this order are not to form part of the costs order as they are not vacated by this order). (b) The first Plaintiff is to pay the Defendants' costs and disbursements incurred prior to 13 August 2013, calculated on the ordinary basis. (Costs orders made prior to this order are not to form part of the costs order as they are not vacated by this order). (c) The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 rule 31.16A and rule 33.10, and Practice Note SC Gen 18 (Para 26). Catchwords: COSTS – Where proceedings dismissed – Where Defendants made Calderbank Offer when only one Plaintiff and then, prior to the final hearing, made a "walk away" offer by way of Offer of Compromise addressed to both Plaintiffs – Where first Plaintiff continued part of proceedings and where second Plaintiff joined as party and continued those proceedings – Whether first Plaintiff acted unreasonably in rejecting Calderbank Offer – Whether Offer of Compromise valid – Said not to be genuine compromise – If a genuine compromise, whether court should "otherwise order" Legislation Cited: Civil Procedure Act 2005 (NSW) Practice Note SC Gen 18 Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Caine v Lumley General Insurance Ltd (No 2) [2008] NSWCA 109 Clark v Commissioner of Taxation [2010] FCA 415 Commonwealth Bank of Australia v Dalle Cort [2015] QSC 41 Craigcare Group Pty Ltd v Superkite Pty Ltd (No 2) [2014] NSWSC 467 Eric Preston Pty Ltd v Euroz Securities Ltd (No 2) [2010] FCA 1068 Evans v Braddock [2015] NSWSC 249 Hazeldene's Chicken Farm Pty Ltd v Victorian Workplace Authority (No 2) [2008] VSCA 298; (2005) 13 VR 435 Hearse v Staunton [2011] NSWSC 1065 Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391 Leichhardt Municipal Council v Green [2004] NSWCA 341 Melchior v Sydney Adventist Hospital Limited (No. 2) [2009] NSWSC 65 NMFM Property Pty Ltd v Citibank Ltd (No 11) [2001] FCA 480; (2001) 187 ALR 654 Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368 Schepis v Commonwealth of Australia [2013] NSWCA 354 Stewart v Atco Controls Pty Ltd (in liq) (No 2) [2014] HCA 31; (2014) 252 CLR 331 Taheri v Vitek (No 2) [2014] NSWCA 344 Technology Leasing Ltd v Lennmar Pty Ltd (No 2) [2012] FCA 1216 Walsh v Walsh (No 2) [2013] NSWSC 1281 Zealley v Liquorland (Australia) Pty Ltd & Anor (Costs Ruling) [2015] VSC 133 Texts Cited: G E Dal Pont, Law of Costs (3rd ed 2013, LexisNexis). Category: Costs Parties: Timothy Fitzgerald Evans (first Plaintiff) Mount Mill Pty Limited (second Plaintiff) Margaret Gael Braddock (first Defendant) Sheelagh Kerryn Evans (second Defendant) Philip King Hawley (third Defendant) Representation: Counsel: Mr M S Willmott SC; Mr D Liebhold (Plaintiffs) Mr R R Stitt QC; Mr G E Underwood; Mr D W Robertson (Defendants)