Rogers v Rogers

Judgment

1. On 9 April 2020 the Court delivered a judgment in this matter in respect of a number of questions that were ordered to be determined separately from and in advance of all other questions in the proceedings (see Rogers v Rogers [2020] NSWSC 392).
2. The questions were answered adversely to the plaintiff. In those circumstances, an order was made that the proceedings be otherwise dismissed. An order was also made that a cross-claim, brought by the first defendant against the plaintiff and the second defendant, be dismissed. None of the other parties played an active role in the hearing of the separate questions.
3. In relation to costs, directions were made for the parties to endeavour to reach agreement as to the appropriate orders to be made, failing which brief written submissions were to be provided by 30 April 2020. Agreement was not reached, and the Court has received submissions on costs from the plaintiff and the first defendant. No submissions were provided by the second defendant. The second defendant was represented at the hearing by Counsel, but aside from giving evidence, the second defendant played an insignificant role in the hearing.
4. In brief, the plaintiff accepts that an order for costs should be made in favour of the first defendant on the ordinary basis, but that the order should not extend to the costs of the cross-claim.
5. The first defendant seeks an order that the plaintiff pay her costs of the proceedings (including the cross-claim) on the ordinary basis up to 21 February 2019 and on an indemnity basis thereafter. The claim for indemnity costs is based upon the plaintiff's failure to accept a Calderbank offer that was made by letter dated 21 February 2019. The offer was to agree to an order that the proceedings be dismissed with no order as to costs. The offer was expressed to be open for acceptance for 21 days. The first defendant submitted that, for the reasons set out in the letter, it was unreasonable of the plaintiff not to accept it.
6. In essence, it was stated in the letter that, based on various enquiries made by the first defendant, it was clear that the plaintiff had no interest in the first defendant's property in Ermington, and continuation of the proceedings would accordingly be an abuse of process.