Australia, May 9 -- New South Wales Land and Environment Court issued text of the following judgement on April 9:

1. On 24 March 2025, I delivered judgment in the substantive proceedings: Doric v Orec [2025] NSWSC 245 (Judgment). This judgment concerns the costs and orders of those proceedings, and ought to be read together with the Judgment.

2. In the Judgment at [161], I directed the parties to confer and provide various agreed orders to give effect to my reasons or, if they were unable to agree, to provide the proposed orders of each party and submissions in support of those orders, which they did.

3. Darryl sought indemnity costs of the proceedings or, in the alternative, his costs on an ordinary basis until he made a Calderbank offer to Judy, and on an indemnity basis thereafter. In any event, Darryl submitted that Judy ought to bear the entirety of her own costs in the proceedings, notwithstanding that he failed in his cross-claim for additional provision pursuant to s 59 Succession Act 2006 (NSW): at [157].

4. Judy sought an order that she pay Darryl's costs of the statement of claim, and that Darryl pay her costs of the cross claim, in both instances on an ordinary basis.

5. There is no dispute that the Court has a broad discretionary power to award costs pursuant to s 98(1) Civil Procedure Act 2005 (NSW). Generally, costs ought to follow the "event", unless it appears that some other order ought be made as to the whole or any part of the costs: Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 42.1.

6. Underlying this general rule is the principle that costs orders should be fair, having regard to what the Court considers to be the responsibility of each party for the incurring of costs: Pirrottina v Pirrottina [2025] NSWCA 55 (Pirrottina) at [220] (Gleeson JA, Payne and Adamson JJA agreeing).

Indemnity costs

7. Darryl sought his costs of the whole proceedings on an indemnity basis (on a gross sum basis in the amount of $220,000), without providing any submissions in support other than suggesting that Judy's claims "were clearly without merit". No submission was made as to why indemnity costs ought to be awarded here. For example, no submission was made that had Judy been properly advised, she should have known that it had no chance of success: see eg Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd (No 2) [2009] NSWCA 12 at [4] (Allsop P, Beazley and Campbell JJA agreeing).

8. Nor was it submitted that because of Judy's evidence, indemnity costs ought be ordered: see eg Aneve Pty Ltd v Bank of Western Australia Ltd [2005] NSWCA 441 at [55] (Hodgson JA, Santow and Bryson JJA agreeing).

9. Darryl's bare submission that an indemnity costs order ought to be made here is not persuasive.

Calderbank offer

10. In addition, or alternatively, Darryl sought to support an order for indemnity costs by reference to a Calderbank offer he had made, that Judy did not accept. His costs on an ordinary basis up to the offer and on an indemnity basis thereafter were also sought on a gross sum basis, in the amount of $208,000.

11. On 30 June 2023, Darryl's solicitors sent an offer marked "without prejudice save as to costs" to Judy's solicitors. The offer made reference to the principles established by Calderbank v Calderbank [1975] 3 All ER 333. Darryl offered to settle the "proceedings" through the payment of $30,000 to Judy, "inclusive of her costs". The offer contained a seven-day timeframe for acceptance. No substantive reference was made to why Judy's legal case was flawed.

12. The principles relevant to Calderbank offers are well established: see eg Della Franca v Lorenzato [2022] NSWCA 53 (Della Franca) at [47] (Brereton JA, Basten JA agreeing); C&V Engineering Services Pty Ltd v Metropolitan Demolitions Pty Ltd [2023] NSWCA 240 (C&V Engineering Services) at [28]-[32] (Kirk, Adamson and Stern JJA).

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19618d2d0141e97877febf7a)

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