Michaels v State of New South Wales

HIS HONOUR: In this action I delivered judgment on 14 December 2001. I directed entry of judgment for the plaintiff for a little over $700,000. I ordered the defendant to pay the plaintiff’s costs and granted liberty to apply in respect of undisclosed matters possibly affecting the order for costs.

Pursuant to that leave the matter has been put back before me. Exhibit 1 is a letter from the solicitors for the plaintiff addressed to the Crown Solicitor dated 30 October 2001. It is in the form of what is generally referred to as a Calderbank letter which offers to settle the plaintiff’s claim for considerably less than the amount of judgment which I found.

The application is that after the expiry of the offer, which was 31 October 2001 the order for costs should be amended to enhance the amount payable by the defendant to the plaintiff to an amount of indemnity costs incurred after that date. Counsel for the defendant has invited me to exercise discretion against making such an order.

The only matter that seems to be relevant to that is the Calderbank letter was dated 30 October 2001 and gave the defendant until 4.30pm the following day to accept the offer. That circumstance is a matter that might in some circumstances provoke an exercise of discretion along the lines claimed by the defendant. However, the matter was heard at Lismore commencing on 1 November, 2001. Adding that circumstance into the melting pot, as it were, I have come to the conclusion it is appropriate to make the order sought by the plaintiff.

Accordingly, the order for costs already made is amended to provide that the amount of costs payable by the defendant to the plaintiff incurred on and after 1 November 2001 are to be costs on an indemnity basis.