Global Consulting Services Pty Ltd v Gresham Property Investments Ltd (No 3) [2019] NSWCA 208

Global Consulting Services Pty Ltd v Gresham Property Investments Ltd (No 3) [2019] NSWCA 208

The Calderbank offer represented a substantial compromise and was sufficiently certain. Gresham did not establish the alleged prior-ranking $850,000 claim on the fund, its claimed fixed priority to $600,000 was not accepted, and any uncertainty about release of funds could have been clarified. Acceptance was open to Gresham subject to the receivers' identified terms. It was therefore unreasonable for Gresham not to accept the offer, warranting indemnity costs from 11 August 2018.

Jurisdiction
Australia
Judgment Date
22 August 2019
Procedural Posture
Costs / On the Papers; Remaining Issue From Notice of Motion Filed 20 November 2018 Seeking Indemnity Costs After Calderbank Offer
Outcome
The appellants' costs application was allowed against the first respondent for indemnity costs from 11 August 2018.
Legal Topics
['calderbank Letter' 'indemnity Costs' 'offer of Compromise' 'unreasonable Rejection of Offer']
['costs' 'civil Procedure'] ['calderbank Letter' 'indemnity Costs' 'offer of Compromise' 'unreasonable Rejection of Offer']

Case Brief

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Procedural Posture

Costs / On the Papers; Remaining Issue From Notice of Motion Filed 20 November 2018 Seeking Indemnity Costs After Calderbank Offer

Legal Issues

  1. 1 ["Whether Gresham unreasonably rejected the appellants' without prejudice save as to costs offer made on 31 July 2018." 'Whether the offer represented a genuine offer of compromise despite uncertainty about surplus funds and alleged prior-ranking claims.' 'Whether the offer was clear and capable of acceptance by Gresham.']

Ratio Decidendi

The Calderbank offer represented a substantial compromise and was sufficiently certain. Gresham did not establish the alleged prior-ranking $850,000 claim on the fund, its claimed fixed priority to $600,000 was not accepted, and any uncertainty about release of funds could have been clarified. Acceptance was open to Gresham subject to the receivers' identified terms. It was therefore unreasonable for Gresham not to accept the offer, warranting indemnity costs from 11 August 2018.

Court Disposition

The appellants' costs application was allowed against the first respondent for indemnity costs from 11 August 2018.

Orders

  • ["The first respondent Gresham pay the appellants' costs of the appeal from 11 August 2018 on an indemnity basis." "That order includes the costs of the appellants' notice of motion filed 20 November 2018."]