Australia, Dec. 26 -- New South Wales Land and Environment Court issued text of the following judgement on Dec. 13:
1. HER HONOUR: This judgment concerns costs. The proceedings concerned whether an executor was at liberty to exchange contracts for the sale of a farm, or whether executor was bound to sell the farm to interests associated with the testator's son by reason of an alleged oral agreement and the execution of contracts, albeit never exchanged.
2. The executor now seeks indemnity costs on the basis of non-acceptance of an offer of compromise. The defendant contends that the executor's costs should be paid on the ordinary basis, as already ordered. The parties relied on affidavits by their respective solicitors, being David Balzer for the executor and Jessica Hill for the defendant.
Facts
3. The issues the subject of these proceedings were canvassed in correspondence between the parties and their solicitors in the fortnight before the proceedings were commenced: Bull v Cooldawinda Pty Ltd [2024] NSWSC 1011 at [67]-[71]. The executor commenced the proceedings on 21 June 2024, seeking an order approving the sale of the property under r 54.3(4)(a), UCPR. An affidavit of the executor and another by Mr Balzer were filed in support of the Summons.
4. On 24 June 2024, the defendant filed a notice of appearance and lodged a caveat on the property. On 25 June 2024, the defendant was joined to the proceedings. On the defendant's director, Robert Rio, giving the usual undertaking as to damages, Meek J made an order restraining the executor from taking steps to exchange contracts or otherwise dispose of the farm. On 27 June 2024, the executor's other solicitor who acted on the sale, Fiona Lomax, made an affidavit.
5. The matter was stood over to the Expedition List on 28 June 2024, when I expedited the matter and listed it for final hearing commencing 29 July 2024. The urgency was attributable to the executor's concern that the Estate may become liable to pay capital gains tax on the sale of the farm, where completion of any sale was unlikely to occur before 2 August 2024, being the second anniversary of the testator's death. I directed the defendant to provide the executor with a written undertaking to the Court by Mr Rio, acknowledging that he was bound to pay any compensation order made by the Court in these proceedings. On that basis, the interim injunction continued. Mr Rio provided a written undertaking to the Court on 5 July 2024.
6. On 28 June 2024, the plaintiff filed a statement of claim. On 5 July 2024, the defendant filed a defence and cross-claim. The defendant's evidence was due on 12 July 2024. At 5.20 pm on Monday 8 July 2024, the plaintiff served an offer of compromise under cover of a Calderbank letter. In the offer of compromise, the plaintiff offered:
(a) In respect of the Statement of Claim and Statement of Cross-Claim, there be no order as to costs with the intent each party bears its own costs.
(b) The Defence and Statement of Cross-Claim be dismissed.
(c) Judgment for the Plaintiff.
(d) The Plaintiff's statement of claim otherwise be dismissed.
7. The accompanying Calderbank letter added that, in the event that the defendant accepted the offer of compromise, the plaintiff would release Mr Rio from his personal undertaking without seeking reimbursement of the costs incurred by the plaintiff to date. The offer was open until 5pm on Friday, 12 July 2024, that is, for four business days.
*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/193b83d1cd5722e67fca9209)
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