Walker v Harwood

[2017] NSWCA 228

NSW Court of Appeal

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Interrogate

Catchwords

1. Costs
2. › Calderbank offers
3. › Probate proceedings
4. › Whether rejection of Calderbank offer was unreasonable
5. › Whether failure to provide supporting documentation rendered rejection reasonable
1. Costs
2. › Offers of compromise
3. › Application of UCPR r 42.14
4. › Circumstances in which court should exercise discretion to 'order otherwise'
5. › Whether reasonableness of rejection sufficient to displace presumptive indemnity costs order
6. › Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.14
1. Costs
2. › Probate actions
3. › Exceptions to principle that costs follow the event
4. › Whether circumstances led reasonably to investigation of propounded will
5. › Whether executors acted bona fide in reasonable belief will could be supported
1. Practice and Procedure
2. › Duty to give reasons
3. › Costs orders
4. › Whether primary judge required to give reasons for contested costs orders of significant financial consequence

Quick Take

When a plaintiff's offer of compromise under UCPR r 20.26 is not accepted and the plaintiff obtains a result no less favourable, the court should readily order that indemnity costs run from the day after the closing date for acceptance (not the day after the offer was made), reconciling the inconsistency between the acceptance period and the costs consequences. The reasonableness of the offeree's rejection does not of itself justify ordering otherwise under r 42.14. In probate proceedings, executors who wish to avoid personal costs exposure should consider seeking indemnities from beneficiaries or court advice under s 63 of the Trustee Act 1925 (NSW). The question whether the second probate costs exception displaces the r 42.14 presumption was left unresolved, with the majority and dissent taking different views.