Wealthsure Pty Ltd v Selig [2014] FCAFC 76

Wealthsure Pty Ltd v Selig [2014] FCAFC 76

Where appellants only partially succeed (notably on apportionment but not on quantum) and have made combined Rules of Court and Calderbank offers that were not unreasonably declined, it is appropriate to award them a portion (here, 30%) of their costs on appeal (and to the cross-appellant) and to vary trial cost orders, including setting aside an indemnity costs order and providing for recovery of 98% of party-party costs to reflect abandonment of a discrete claim. Lump sum offers that require complex and rapid assessment do not trigger costs consequences under Rule 25.15 where the judgment ultimately exceeds the amount offered.

Jurisdiction
Australia
Judgment Date
26 June 2014
Procedural Posture
Appeal / Judgment on Costs and Execution of Orders After Appeal
Outcome
Orders made regarding costs, discharge of indemnity costs order, partial recovery of costs, payment out of Court, and extension for compliance with statutory demand.
Legal Topics
['costs' 'apportionment' 'statutory Demand' 'offers of Settlement' 'damages']
['civil Procedure'] ['costs' 'apportionment' 'statutory Demand' 'offers of Settlement' 'damages']

Case Brief

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Procedural Posture

Appeal / Judgment on Costs and Execution of Orders After Appeal

Legal Issues

  1. 1 ['Appropriate costs orders following partial success on appeal and cross-appeal' 'Effect of offers of compromise (Rules of Court and Calderbank offers) on costs' 'Variation and application of previous orders, including indemnity costs and apportionment' 'Application of payments into court toward satisfaction of liability' 'Extension of time to comply with statutory demand']

Ratio Decidendi

Where appellants only partially succeed (notably on apportionment but not on quantum) and have made combined Rules of Court and Calderbank offers that were not unreasonably declined, it is appropriate to award them a portion (here, 30%) of their costs on appeal (and to the cross-appellant) and to vary trial cost orders, including setting aside an indemnity costs order and providing for recovery of 98% of party-party costs to reflect abandonment of a discrete claim. Lump sum offers that require complex and rapid assessment do not trigger costs consequences under Rule 25.15 where the judgment ultimately exceeds the amount offered.

Court Disposition

Orders made regarding costs, discharge of indemnity costs order, partial recovery of costs, payment out of Court, and extension for compliance with statutory demand.

Orders

  • ['Respondents (Mr and Mrs Selig) to pay appellants 30% of their costs of the appeal.' 'Respondents (Mr and Mrs Selig) to pay cross-appellant 30% of the costs of his appeal.' 'Order 5 of the orders made on 6 August 2013 is set aside.' 'Orders 8 and 9 of the orders made on 18 April 2013 are varied to require payment...