Claire Rewais and Osama Rewais t/as McVitty Grove v BPB Earthmoving Pty Ltd (No 2) [2024] NSWSC 1555

Claire Rewais and Osama Rewais t/as McVitty Grove v BPB Earthmoving Pty Ltd (No 2) [2024] NSWSC 1555

The offer contained in the 14 August 2024 letter did not satisfy the requirements of a Calderbank offer, as it was unclear in its terms, reserved underlying substantive rights, did not contain the necessary statement regarding costs consequences if more favourable judgment achieved, and gave the offerees insufficient time to consider given unserved evidence. It was therefore not unreasonable for the Rewaises to reject the offer. BPB's application for indemnity costs is dismissed, and the costs order is only varied for clarity as to the 'first defendant'.

Parties
Plaintiffs/respondents: Claire Rewais & Osama Rewais t/as McVitty Grove; First Defendant/applicant: BPB Earthmoving Pty Ltd; Second Defendant: Christopher Larcos
Jurisdiction
Australia
Judgment Date
03 December 2024
Procedural Posture
Costs Application (variation and Indemnity Costs) Following Principal Judgment in Technology and Construction List / Post Trial, Costs Determination
Outcome
BPB's application for indemnity costs dismissed; costs order varied for clarity.
Legal Topics
Costs, Indemnity Costs, Calderbank Offer, Home Building Act Compliance
Civil Procedure Building and Construction Law Costs Indemnity Costs Calderbank Offer Home Building Act Compliance

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Parties

Claire Rewais & Osama Rewais t/as McVitty Grove

Plaintiffs/respondents

BPB Earthmoving Pty Ltd

First Defendant/applicant

Christopher Larcos

Second Defendant

Procedural Posture

Costs Application (variation and Indemnity Costs) Following Principal Judgment in Technology and Construction List / Post Trial, Costs Determination

Legal Issues

  1. 1 Whether a purported Calderbank offer was a genuine offer of compromise and whether it was unreasonable for the Rewaises to reject the offer so as to justify indemnity costs; whether the costs order from the principal judgment should be varied

Ratio Decidendi

The offer contained in the 14 August 2024 letter did not satisfy the requirements of a Calderbank offer, as it was unclear in its terms, reserved underlying substantive rights, did not contain the necessary statement regarding costs consequences if more favourable judgment achieved, and gave the offerees insufficient time to consider given unserved evidence. It was therefore not unreasonable for the Rewaises to reject the offer. BPB's application for indemnity costs is dismissed, and the costs order is only varied for clarity as to the 'first defendant'.

Court Disposition

BPB's application for indemnity costs dismissed; costs order varied for clarity.

Orders

  • Order (2) of 10 October 2024 is varied: The plaintiffs are to pay the first defendant's costs of the proceedings.
  • Order: The first defendant is to pay the plaintiffs' costs of the application (notice of motion of 21 October 2024).