Richard Shorten & Anor v David Hurst Constuctions Pty Limited & Anor; David Hurst Constructions v Richard William Shorten & Anor [2008] NSWSC 609

Richard Shorten & Anor v David Hurst Constuctions Pty Limited & Anor; David Hurst Constructions v Richard William Shorten & Anor [2008] NSWSC 609

Indemnity costs were refused because the plaintiffs' Calderbank offer contained no element of compromise and thus did not warrant a departure from the ordinary costs rules; the first defendant's conduct was not unreasonable in rejecting it.

Parties
First Plaintiff: Richard Shorten; Second Plaintiff: Lorraine Shorten; First Defendant: David Hurst Constructions Pty Limited; Second Defendant: Ian Hillman
Jurisdiction
Australia
Judgment Date
17 June 2008
Procedural Posture
Costs Application in Technology and Construction Proceedings / Post Judgment Costs Determination
Outcome
Claim for indemnity costs refused; costs payable on ordinary basis; procedural declarations and orders made.
Legal Topics
Costs, Indemnity Costs, Calderbank Offers, Practice and Procedure
Civil Procedure Costs Indemnity Costs Calderbank Offers Practice and Procedure

Case Brief

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Parties

Richard Shorten

First Plaintiff

Lorraine Shorten

Second Plaintiff

David Hurst Constructions Pty Limited

First Defendant

Ian Hillman

Second Defendant

Procedural Posture

Costs Application in Technology and Construction Proceedings / Post Judgment Costs Determination

Legal Issues

  1. 1 Whether indemnity costs should be ordered against the first defendant
  2. 2 Whether a Calderbank offer containing no element of compromise can justify indemnity costs

Ratio Decidendi

Indemnity costs were refused because the plaintiffs' Calderbank offer contained no element of compromise and thus did not warrant a departure from the ordinary costs rules; the first defendant's conduct was not unreasonable in rejecting it.

Court Disposition

Claim for indemnity costs refused; costs payable on ordinary basis; procedural declarations and orders made.

Orders

  • The purported adjudication determination by the second defendant (reference no 2007-NECA-026) is declared void.
  • The purported adjudication determination by the second defendant (reference no 2008-NECA-001) is declared void.