SSABR Pty Ltd v AMA Group Ltd (No 2) [2024] NSWSC 24

SSABR Pty Ltd v AMA Group Ltd (No 2) [2024] NSWSC 24

The defendants' Calderbank offer was a genuine compromise because it offered the plaintiffs a substantial sum and required the defendants to forego any contribution to their costs in circumstances where, if successful at trial, the defendants would owe nothing and be entitled to costs. The term vacating previous costs orders was clear and did not make the offer tantamount to a walk-away offer or create complex costs consequences. The fact that some accounting issues were not determined did not detract from the costs consequences of non-acceptance, because acceptance would have avoided determination of all issues. Although made shortly before trial, the offer was reasonable as to timing in...

Jurisdiction
Australia
Judgment Date
02 February 2024
Procedural Posture
Equity Commercial List Commercial Dispute Costs Application / Application for Special Costs Order Determined on the Papers After Judgment at Trial
Outcome
Indemnity costs ordered in favour of the defendants from 13 October 2023.
Legal Topics
['calderbank Offers' 'indemnity Costs' 'genuine Compromise' 'reasonableness of Non Acceptance' 'apportionment of Costs']
['civil Procedure' 'costs' 'commercial Litigation'] ['calderbank Offers' 'indemnity Costs' 'genuine Compromise' 'reasonableness of Non Acceptance' 'apportionment of Costs']

Case Brief

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Procedural Posture

Equity Commercial List Commercial Dispute Costs Application / Application for Special Costs Order Determined on the Papers After Judgment at Trial

Legal Issues

  1. 1 ["Whether the defendants' Calderbank offer was a genuine offer of compromise notwithstanding a term that all previous costs orders be vacated." 'Whether indemnity costs were inappropriate because some issues advanced by the plaintiffs were not determined at trial.' "Whether the time allowed for acceptance of the defendants' Calderbank offer was reasonable in the circumstances." "Whether the plaintiffs' non-acceptance of the defendants' Calderbank offer was unreasonable."]

Ratio Decidendi

The defendants' Calderbank offer was a genuine compromise because it offered the plaintiffs a substantial sum and required the defendants to forego any contribution to their costs in circumstances where, if successful at trial, the defendants would owe nothing and be entitled to costs. The term vacating previous costs orders was clear and did not make the offer tantamount to a walk-away offer or create complex costs consequences. The fact that some accounting issues were not determined did not detract from the costs consequences of non-acceptance, because acceptance would have avoided determination of all issues. Although made shortly before trial, the offer was reasonable as to timing in...

Court Disposition

Indemnity costs ordered in favour of the defendants from 13 October 2023.

Orders

  • ["Vary Order 4 made on 15 December 2023 such that the plaintiffs are to pay the defendants' costs of the proceedings on a party and party basis up to and including 12 October 2023." "Vary Order 4 made on 15 December 2023 such that the plaintiffs are to pay the defendants' costs of the proceedings on an indemnity...