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[2025] NSWSC 343
General information, not legal advice.
Supreme Court of NSW
2025-04-09
Peden J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Doric v Orec (No 2) [2025] NSWSC 343
Hearing dates: On the papers
Date of orders: 9 April 2025
Decision date: 09 April 2025
Jurisdiction: Equity – Probate and Family Provision List – Probate
Before: Peden J
Decision: At [33]
Catchwords: COSTS — Party/Party — Court’s discretion — Whether indemnity costs should be ordered — Calderbank offer — Where terms of proposed settlement unclear — Where timeframe for acceptance was seven days — Where no genuine element of compromise COSTS — Party/Party — General rule that costs follow the event — Gross sum costs order — Standard of evidence required — Where no evidence of legal work completed or rates charged
Legislation Cited: Civil Procedure Act 2005 (NSW) s 98
Succession Act 2006 (NSW) s 59
Uniform Civil Procedure Rules 2005 (NSW) rr 20.26, 42.1.
Cases Cited: Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39
Aneve Pty Ltd v Bank of Western Australia Ltd [2005] NSWCA 441
Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd (No 2) [2009] NSWCA 12
Brymount Pty Ltd v Cummins (No 2) [2005] NSWCA 69
C&V Engineering Services Pty Ltd v Metropolitan Demolitions Pty Ltd [2023] NSWCA 240
Calderbank v Calderbank [1975] 3 All ER 333
Colquhoun v District Court of New South Wales (No 2) [2015] NSWCA 54
Della Franca v Lorenzato [2022] NSWCA 53
Doric v Orec [2025] NSWSC 245
E Group Security Pty Ltd v Chief Commissioner of State Revenue (No 2) [2021] NSWSC 1296
Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322 at [117]
Harrison v Schipp [2002] NSWCA 213
Krolczyk v Winner [2022] NSWCA 196
Michael Hill Jeweller (Australia) Pty Ltd v Gispac Pty Ltd (No 2) [2024] NSWCA 274
Pirrottina v Pirrottina [2025] NSWCA 55
Stoddard (NSW) Pty Ltd v Kellyville Building Pty Ltd [2019] NSWSC 1480
Category: Costs
Parties: Judy Nada Doric (Plaintiff)
Darko Orec (Defendant)
Representation: Counsel:
A G Rogers (Plaintiff)
R Bianchi (Defendant)
Solicitors:
Alexander Richards Lawyers (Plaintiff)
O’Neill Solicitors (Defendant)
File Number(s): 2023/00093724
Publication restriction: Nil
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.
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.
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].
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.
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.
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).
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).
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).
Darryl’s bare submission that an indemnity costs order ought to be made here is not persuasive.
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.
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.
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).
For the reasons that follow, I do not consider that Judy’s failure to accept Darryl’s Calderbank offer was unreasonable and should impact the appropriate costs orders.
First, it is unclear what was being settled under the terms of Darryl’s offer. It was not stipulated that acceptance would constitute full and final settlement of Judy’s statement of claim and/or Darryl’s costs claim, nor which of Bozica’s wills would be admitted to probate.
The onus rested on Darryl, as the party seeking an indemnity costs order, to demonstrate that Judy’s failure to accept his Calderbank offer was unreasonable: see eg C*&V Engineering Services* at [31]. In circumstances where the terms of his offer were ambiguous, this fact alone would mean that he would fail to satisfy this burden.
Secondly, the offer was made early in the proceedings and was only open for acceptance for seven days.
There is no mandatory minimum time limit for which a Calderbank offer must be open for acceptance: see eg E Group Security Pty Ltd v Chief Commissioner of State Revenue (No 2) [2021] NSWSC 1296 at [64] (Ward CJ in Eq, as the President then was). What is required is that the offeree has sufficient time to consider the offer: Michael Hill Jeweller (Australia) Pty Ltd v Gispac Pty Ltd (No 2) [2024] NSWCA 274 at [8] (Bell CJ, Payne JA and Basten AJA). It has been said that a non-renewed offer, open for acceptance for 7 and 14 days respectively, and made well in advance of trial, did not provide sufficient time for consideration: Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322 at [117] (McColl JA); Brymount Pty Ltd v Cummins (No 2) [2005] NSWCA 69 at [15] (Beazley JA, as her Excellency then was, Ipp and McColl JJA agreeing).
The seven-day window in Darryl’s offer was far shorter than, for example, the time limit required for an offer of compromise made in comparable circumstances: UCPR r 20.26(5)(a).
Further, the offer predated both the filing of Darryl’s amended cross-claim and the service of much of the evidence, upon which he relied at the hearing. I do not therefore consider it was unreasonable for Judy not to accept the offer within seven days. At the time of receipt, Judy could not properly assess the strength of her legal position in the whole of the litigation, against which to weigh the offer.
Thirdly, it is well-established that an effective Calderbank offer must contain a genuine element of compromise, in the sense of giving something away, rather than merely being designed to trigger costs sanctions in the event of the offeror succeeding at trial: see eg Krolczyk v Winner [2022] NSWCA 196 at [212]-[213] (Griffiths AJA, White and Kirk JJA agreeing).
In the present case, the offered sum amounted to just $30,000, inclusive of Judy’s costs. Given that the estate in question was valued between $1.4 and $1.5 million (Judgment at [3]), Judy would have likely received approximately close to $500,000, had she succeeded in her statement of claim. It is not clear what Judy’s costs were at the date of the offer. However, Darryl’s costs were already $38,000 at that point. Assessed against that background, I do not consider the amount offered to have constituted a genuine compromise.
Accordingly, it was not unreasonable for Judy not to accept Darryl’s offer and this has no impact on the appropriate costs orders.
Where the result of litigation is mixed, as is the case here, it is appropriate to entertain the process of apportioning costs as between different issues in the proceedings: Pirrottina at [221].
Darryl was successful in asserting the validity of the 2016 (and 2001) will and therefore Judy ought to pay his costs, but not on an indemnity basis.
Darryl was unsuccessful in his cross-claim for family provision and therefore he ought to pay Judy’s costs of his cross-claim.
Darryl’s counsel submitted that the estoppel claims he initially pursued, but later abandoned, and the family provision claim he unsuccessfully pursued, did not occupy a substantial part of the hearing and ought not be reflected in any costs orders. I reject that submission. The course Darryl pursued required Judy to defend and respond to the claims he brought, incurring costs that ought to be borne by Darryl.
As noted above, Darryl sought a gross sum costs order in various amounts, depending on what conclusion was reached concerning the appropriate costs orders.
This Court has the power to award gross sum costs: Civil Procedure Act s 98(4)(c). Such an award has the potential “to avoid the expense, delay and aggravation likely to be involved in a contested costs assessment process”: Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39 at [15] (Meagher, White and Brereton JJA). However, a gross sum order ought only be made “when the Court considers it can do so fairly between the parties, and that includes sufficient confidence in arriving at an appropriate sum on the materials available”: Harrison v Schipp [2002] NSWCA 213 at [218] (Giles JA).
To assist the Court, evidence should stipulate the timing and nature of costs incurred, the rates at which lawyers charged and the amount likely recoverable on assessment in the event that that occurred: Colquhoun v District Court of New South Wales (No 2) [2015] NSWCA 54 at [7] (Beazley P, Barrett and Leeming JJA). However, the standard of evidence required for the Court to make a gross sum order will vary depending on the particular circumstances of a given case: Stoddard (NSW) Pty Ltd v Kellyville Building Pty Ltd [2019] NSWSC 1480 at [26] (Darke J),
Here, Darryl’s evidence of his costs was insufficient. It consisted only of an affidavit from his solicitor, which broke down “estimated” costs on an indemnity and ordinary basis before and after his offer, split between four issues traversed in the proceedings.
Absent further information, such as the rates charged by Darryl’s lawyers and the work performed, I am unable to determine with confidence that any gross sum amount would be fair. As I previously noted, family provision proceedings have not infrequently involved disproportionate legal costs: Judgment at [156].
Accordingly, Darryl’s costs must be agreed or assessed.
For those reasons, the appropriate orders are:
Order that the will dated 3 July 2016 of Bozica Orec (“the deceased”) be admitted to probate.
Order that letters of administration with the will dated 3 July 2016 annexed of the deceased be granted to Darryl Orec.
Order that the matter be remitted to the Senior Deputy Registrar in Probate to complete the grant.
Order that the amended statement of claim filed 28 September 2023 be dismissed.
Order that the amended statement of cross-claim filed 3 July 2023 be dismissed.
Order that the plaintiff pay the defendant’s costs of the plaintiff’s statement of claim on an ordinary basis as agreed or assessed.
Order that the cross claimant pay the cross defendant’s costs of the cross claim on an ordinary basis as agreed or assessed.
Grants liberty to the parties to apply for such further or consequential orders as may be necessary to give effect to these orders.
Doric
Orec