Caltex Australia Petroleum Pty Ltd v Troost (No 2) [2015] NSWCA 103

Caltex Australia Petroleum Pty Ltd v Troost (No 2) [2015] NSWCA 103

Caltex was not entitled to indemnity costs. The evidence raised doubt about receipt of the June Letter, and in any event the offer allowed an unreasonably short time and was made before any appeal was on foot and without explaining the merits, so failure to accept it was not unreasonable. The indemnity did not cover costs incurred in enforcing Caltex’s rights against Mr Troost. Because Caltex was ultimately completely successful in its claim against Mr Troost and no basis for departure from the usual rule was established, Mr Troost must pay Caltex’s costs of the District Court proceedings and the appeal on the ordinary basis.

Jurisdiction
Australia
Judgment Date
20 April 2015
Procedural Posture
Appeal Concerning Costs Following Claim Under Guarantee and Indemnity / Court of Appeal of the Supreme Court of New South Wales, on the Papers, After Reasons Published on 23 March 2015 and Further Submissions on Costs
Outcome
Appeal allowed; District Court orders set aside; judgment entered for Caltex with costs, but no indemnity costs order made.
Legal Topics
['application for Indemnity Costs' 'offer of Compromise' 'presumption of Receipt Under S 160 of the Evidence Act 1995 (nsw)' 'construction of Indemnity' 'costs Following the Event' 'failure on a Discrete Issue']
['civil Procedure' 'costs' 'evidence' 'guarantee and Indemnity'] ['application for Indemnity Costs' 'offer of Compromise' 'presumption of Receipt Under S 160 of the Evidence Act 1995 (nsw)' 'construction of Indemnity' 'costs Following the Event' 'failure on a Discrete Issue']

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Procedural Posture

Appeal Concerning Costs Following Claim Under Guarantee and Indemnity / Court of Appeal of the Supreme Court of New South Wales, on the Papers, After Reasons Published on 23 March 2015 and Further Submissions on Costs

Legal Issues

  1. 1 ['Whether Caltex should receive indemnity costs of the appeal because Mr Troost unreasonably failed to accept the offer in the June Letter.' 'Whether the indemnity entitled Caltex to recover its legal costs of the proceedings on an indemnity basis as losses, damages, costs and expenses resulting from the Company’s default.' 'Whether there should be no order as to costs in the District Court because Caltex failed on the guarantee issue although it succeeded under the indemnity.']

Ratio Decidendi

Caltex was not entitled to indemnity costs. The evidence raised doubt about receipt of the June Letter, and in any event the offer allowed an unreasonably short time and was made before any appeal was on foot and without explaining the merits, so failure to accept it was not unreasonable. The indemnity did not cover costs incurred in enforcing Caltex’s rights against Mr Troost. Because Caltex was ultimately completely successful in its claim against Mr Troost and no basis for departure from the usual rule was established, Mr Troost must pay Caltex’s costs of the District Court proceedings and the appeal on the ordinary basis.

Court Disposition

Appeal allowed; District Court orders set aside; judgment entered for Caltex with costs, but no indemnity costs order made.

Orders

  • ['The appeal be allowed.' 'The orders of the District Court of 16 April 2014 be set aside.' "In lieu of the orders of the District Court, there be a verdict and judgment for the plaintiff against the defendant for the sum of $139,138.95 plus interest on the sum of $132,513.29 from 23 December 2009 to 23 March 2015...