Costs Orders
2 As it was apparent that offers of compromise had been made at first instance, no costs orders were made on 17 July 2009, pending the parties making written submissions as to the appropriate orders. Such submissions have now been made.
3 The appellant made an Offer of Compromise on 6 February 2008 whereby she agreed that she would accept the sum of $1,250,000, plus costs as agreed or assessed, in satisfaction of her claim. The offer was expressed to be open for a period of 28 days. The offer was not accepted and the hearing at first instance commenced on 19 March 2008.
4 On the morning of the first day of the hearing the respondent served an Offer of Compromise indicating a willingness to pay $500,000 plus costs in satisfaction of the appellant's claim. The offer was expressed to be open until the appellant's first witness was called. The offer was not accepted.
5 On 11 April 2008, whilst the hearing was in progress, the appellant made a Calderbank offer indicating that she would accept $1,300,000 plus costs in satisfaction of her claim. A period for which the offer was open was not expressed. The offer was not accepted.
6 On 9 September 2008 Harrison J delivered judgment, finding in favour of the respondent. On 17 July 2009, this Court allowed an appeal from that decision and gave judgment for the appellant in the sum of $1,679,936.71, together with such amount, if any, as may be assessed by the primary judge in respect of domestic assistance.
7 No further Offer of Compromise or Calderbank offer was made by the appellant after 11 April 2008.
8 The appellant contends that in these circumstances the appropriate costs order to be made in respect of the proceedings at first instance is that the respondent pay the appellant's costs on the party and party basis until 7 March 2008 and from 8 March 2008 on the indemnity basis. The respondent takes no issue with this contention and the orders as sought will accordingly be made.
9 The appellant also seeks payment of her costs of the appeal on an indemnity basis, relying upon the Offer of Compromise of 6 February 2008 and the Calderbank letter of 11 April 2008 as indicating her willingness to compromise her claim. This Court has made clear on a number of occasions, most recently in Bennette v Cohen (No 2) [2009] NSWCA 162 at [51]-[55], that a pre-trial offer of compromise does not automatically affect the order for costs to be made in this Court when an appeal succeeds and the plaintiff recovers substantially more than his or her offer. Such a pre-trial offer "is still a relevant consideration but not, of itself, a determinative one" (at [52]). These comments apply equally to the Calderbank offer made in this case by the appellant during the course of the hearing at first instance.
10 In our view, the appellant's costs of the appeal should be ordered to be paid by the respondent on the normal, party and party basis, and not on an indemnity basis. Even if the appellant had made a further offer, in similar terms to her earlier offers, after judgment had been given at first instance, we would not have ordered that her costs of the appeal be paid on an indemnity basis. Once it obtained a judgment in its favour at first instance, the respondent would not have been acting unreasonably in rejecting such an offer. Further, the facts that no further offer was in any event made by the appellant and that the element of compromise embodied in her offers of February and April was a limited one, weigh against her claim for indemnity costs of the appeal.