Gun Capital Management Pty Ltd v Solamind Pty Ltd (No 2) [2013] FCA 749

Gun Capital Management Pty Ltd v Solamind Pty Ltd (No 2) [2013] FCA 749

It was not unreasonable for the applicant to refuse the Calderbank offer as the case depended on the credit of witnesses and there was no finding of deliberate dishonesty in the applicant's evidence; therefore, costs should be on a party-party basis. For the cross-claim, as it was abandoned and there were no costs relating exclusively to it at trial, cross-respondents should also have party-party costs up to trial.

Parties
Applicant / First Cross Respondent: Gun Capital Management Pty Ltd (ACN 092 221 546); First Respondent / First Cross Claimant: Solamind Pty Ltd (ACN 082 203 772); Second Respondent / Second Cross Claimant: Solagran Ltd (ACN 002 592 396); Third Respondent / Third Cross Claimant: Vagif Soultanovich Soultanov; Second Cross Respondent: Elias (Leo) Khouri; Third Cross Respondent: Mining Investments Ltd
Jurisdiction
Australia
Judgment Date
01 July 2013
Procedural Posture
Application and Cross Claim / Post Trial Costs Determination
Outcome
Costs orders made: Applicant to pay respondents' costs of the application on a party-and-party basis; cross-claimants to pay cross-respondents' costs of the cross-claim on a party-and-party basis to 2 July 2012.
Legal Topics
Costs, Calderbank Offer, Indemnity Costs, Party Party Costs
Civil Procedure Costs Calderbank Offer Indemnity Costs Party Party Costs

Case Brief

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Parties

Gun Capital Management Pty Ltd (ACN 092 221 546)

Applicant / First Cross Respondent

Solamind Pty Ltd (ACN 082 203 772)

First Respondent / First Cross Claimant

Solagran Ltd (ACN 002 592 396)

Second Respondent / Second Cross Claimant

Vagif Soultanovich Soultanov

Third Respondent / Third Cross Claimant

Elias (Leo) Khouri

Second Cross Respondent

Mining Investments Ltd

Third Cross Respondent

Procedural Posture

Application and Cross Claim / Post Trial Costs Determination

Legal Issues

  1. 1 Whether costs for the application should be on an indemnity or party-party basis after refusal of a Calderbank offer
  2. 2 Whether cross-respondents should receive indemnity costs for the cross-claim after abandonment

Ratio Decidendi

It was not unreasonable for the applicant to refuse the Calderbank offer as the case depended on the credit of witnesses and there was no finding of deliberate dishonesty in the applicant's evidence; therefore, costs should be on a party-party basis. For the cross-claim, as it was abandoned and there were no costs relating exclusively to it at trial, cross-respondents should also have party-party costs up to trial.

Court Disposition

Costs orders made: Applicant to pay respondents' costs of the application on a party-and-party basis; cross-claimants to pay cross-respondents' costs of the cross-claim on a party-and-party basis to 2 July 2012.

Orders

  • The applicant pay the respondents' costs of the application on a party-and-party basis.
  • The cross-claimants pay the cross-respondents' costs of the cross-claim on a party-and-party basis to 2 July 2012.