George Pegios v Simon Rez – [Costs]

HIS HONOUR: On 23 June 2022 I gave judgment in the principal proceedings: George Pegios v Simon Rez [2022] NSWSC 837.

Defined terms in the principal judgment are used here.

Simon succeeded. In par 61 I made the following order with respect to costs:

On 23 June 2022, Simon, via his solicitors, gave notice that he seeks indemnity costs based on a Calderbank letter [1] dated 16 March 2022 in which he offered George to settle the proceedings a total of $1,000 inclusive of costs, coupled with consent orders providing for a verdict for Simon and Reka with no order as to costs. No notification as contemplated by par 61 was received on behalf of George.

On 6 July 2022, my Associate informed the parties that I proposed to determine the question of costs on the papers and would assume, unless George notified her in writing by close of business on 7 July 2022 that he sought some other order, that he does not oppose the provisional ruling in par 61 but does oppose the order sought by Simon. No communication was received on behalf of George. Simon consented to the determination of costs on the papers.

I observed in O’Connor v O’Connor (No 2) [2021] NSWSC 1173 at par 5:

In my opinion, the Calderbank offer here does not support an order for indemnity for costs. It did not offer a true compromise but a paltry amount, acceptance of which would have been tantamount to a capitulation by George. By the time it was made, George’s own costs no doubt significantly exceeded $1,000. It was not unreasonable for George not to accept it.

The conclusion is that George is to pay Simon’s and Reka’s costs of the proceedings on the ordinary basis.