Bonny Glen Pty Ltd v Country Energy (No 2) [2009] NSWCA 106

Bonny Glen Pty Ltd v Country Energy (No 2) [2009] NSWCA 106

Country Energy's failure to accept the Calderbank offers within their stated periods was not shown to be unreasonable because, at the relevant times, Bonny Glen's served damages material did not sufficiently support the much larger damages ultimately recovered. It was also not unreasonable for Country Energy to oppose the appeal and bring its cross-appeal, particularly where Bonny Glen made no further settlement offer after the first instance decision. Accordingly, no indemnity costs order was justified; costs below should follow the event on the ordinary basis, and there was no basis to vary the existing appeal and cross-appeal costs orders.

Jurisdiction
Australia
Judgment Date
13 May 2009
Procedural Posture
Procedural and Other Rulings; Costs / On Submissions After Principal Judgment in the Court of Appeal as to Costs of the Proceedings Below and Submissions Extending to Costs of the Appeal and Cross Appeal
Outcome
Additional costs order made; Bonny Glen obtained costs of the proceedings below on the ordinary basis, while indemnity costs and variation of the appeal and cross-appeal costs orders were refused.
Legal Topics
['calderbank Offers' 'indemnity Costs' 'costs Following the Event' 'appeal Costs' 'cross Appeal Costs']
['procedure' 'costs'] ['calderbank Offers' 'indemnity Costs' 'costs Following the Event' 'appeal Costs' 'cross Appeal Costs']

Case Brief

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Procedural Posture

Procedural and Other Rulings; Costs / On Submissions After Principal Judgment in the Court of Appeal as to Costs of the Proceedings Below and Submissions Extending to Costs of the Appeal and Cross Appeal

Legal Issues

  1. 1 ["Whether it was unreasonable for Country Energy not to have accepted Bonny Glen's Calderbank offers dated 7 October 2005 and 22 December 2005." 'Whether Bonny Glen should receive costs of the proceedings below on an indemnity basis from 7 October 2005.' 'Whether Bonny Glen should receive costs of the appeal and cross-appeal on an indemnity basis.' 'Whether there was any basis to alter the orders as to the costs of the appeal and cross-appeal.']

Ratio Decidendi

Country Energy's failure to accept the Calderbank offers within their stated periods was not shown to be unreasonable because, at the relevant times, Bonny Glen's served damages material did not sufficiently support the much larger damages ultimately recovered. It was also not unreasonable for Country Energy to oppose the appeal and bring its cross-appeal, particularly where Bonny Glen made no further settlement offer after the first instance decision. Accordingly, no indemnity costs order was justified; costs below should follow the event on the ordinary basis, and there was no basis to vary the existing appeal and cross-appeal costs orders.

Court Disposition

Additional costs order made; Bonny Glen obtained costs of the proceedings below on the ordinary basis, while indemnity costs and variation of the appeal and cross-appeal costs orders were refused.

Orders

  • ["Set aside the costs orders made below on 31 August 2007 and 2 October 2007, and in lieu thereof order that Country Energy pay Bonny Glen's costs of the proceedings below."]