Global Consulting Services Pty Ltd v Gresham Property Investments Ltd (No 2) [2018] NSWCA 313

Global Consulting Services Pty Ltd v Gresham Property Investments Ltd (No 2) [2018] NSWCA 313

Because the Calderbank-based indemnity costs application concerned only a relatively small portion of the appellants' costs, while the parties' submissions required consideration of unresolved and speculative questions about fund distribution, priority claims and receivers' fees, the Court should not determine the substantive entitlement issues on the costs motion; instead, the unchallenged ordinary costs orders should be separated and the remaining motion should be heard and determined on the papers by a single Judge of Appeal.

Jurisdiction
Australia
Judgment Date
18 December 2018
Procedural Posture
Costs / Notice of Motion Filed After Appeal Judgment Seeking Indemnity Costs From 11 August 2018, Determined on the Papers
Outcome
Order 3 made on 6 November 2018 was set aside and replaced with orders separating the unchallenged ordinary costs orders from the unresolved costs motion, which was directed to be heard and determined on the papers by a single Judge of Appeal.
Legal Topics
['calderbank Offer' 'indemnity Costs' 'ordinary Basis Costs' 'distribution of Fund' "receivers' Fees" 'single Judge of Appeal']
['civil Procedure' 'costs'] ['calderbank Offer' 'indemnity Costs' 'ordinary Basis Costs' 'distribution of Fund' "receivers' Fees" 'single Judge of Appeal']

Case Brief

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Procedural Posture

Costs / Notice of Motion Filed After Appeal Judgment Seeking Indemnity Costs From 11 August 2018, Determined on the Papers

Legal Issues

  1. 1 ["Whether Gresham should pay the appellants' costs of the appeal incurred from 11 August 2018 on an ordinary basis or on an indemnity basis because of a Calderbank offer." 'Whether uncertainty about the amount available for distribution from the fund and unresolved priority claims made it inappropriate to determine the special costs application immediately.' 'Whether the notice of motion as to costs from 11 August 2018 should be heard and determined by a single Judge of Appeal.']

Ratio Decidendi

Because the Calderbank-based indemnity costs application concerned only a relatively small portion of the appellants' costs, while the parties' submissions required consideration of unresolved and speculative questions about fund distribution, priority claims and receivers' fees, the Court should not determine the substantive entitlement issues on the costs motion; instead, the unchallenged ordinary costs orders should be separated and the remaining motion should be heard and determined on the papers by a single Judge of Appeal.

Court Disposition

Order 3 made on 6 November 2018 was set aside and replaced with orders separating the unchallenged ordinary costs orders from the unresolved costs motion, which was directed to be heard and determined on the papers by a single Judge of Appeal.

Orders

  • ['Set aside order 3 made on 6 November 2018.' "3A. The first respondent Gresham pay the appellants' costs at first instance." "3B. The first respondent Gresham pay the appellants' costs of this appeal up to and including 10 August 2018 on the ordinary basis." '3C. Orders 3A and 3B are taken to have effect on 6...