Michael Hill Jeweller (Australia) Pty Ltd v Gispac Pty Ltd (No 2) [2024] NSWCA 274

Michael Hill Jeweller (Australia) Pty Ltd v Gispac Pty Ltd (No 2) [2024] NSWCA 274

The respondent unreasonably rejected a reasonable Calderbank offer, justifying an order that the appellant receive indemnity costs for the portion of appeal costs incurred after the offer; prior to that, the respondent is to pay 84% of the appellant's ordinary costs, reflecting the proportion of reduction in liability achieved on appeal. For trial costs, as the appellant was largely but not wholly successful, it is appropriate the appellant pay 40% of the respondent's costs, acknowledging both the overlapping issues and the partial success of each party.

Parties
Appellant/defendant: Michael Hill Jeweller (Australia) Pty Ltd; Respondent/plaintiff: Gispac Pty Ltd
Jurisdiction
Australia
Judgment Date
21 November 2024
Procedural Posture
Appeal / Post Judgment (costs Determination After Appeal Decision)
Outcome
Orders as to costs varied after appeal and upon further submissions.
Legal Topics
Costs, Appeal Costs, Offers of Compromise, Indemnity Costs, Apportionment of Costs, Trial Costs
Civil Procedure Costs Appeal Costs Offers of Compromise Indemnity Costs Apportionment of Costs Trial Costs

Case Brief

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Parties

Michael Hill Jeweller (Australia) Pty Ltd

Appellant/defendant

Gispac Pty Ltd

Respondent/plaintiff

Procedural Posture

Appeal / Post Judgment (costs Determination After Appeal Decision)

Legal Issues

  1. 1 Whether the respondent unreasonably refused a Calderbank offer, justifying indemnity costs for part of the appeal.
  2. 2 How to apportion costs on appeal and at trial given partial success by both parties and separable issues.

Ratio Decidendi

The respondent unreasonably rejected a reasonable Calderbank offer, justifying an order that the appellant receive indemnity costs for the portion of appeal costs incurred after the offer; prior to that, the respondent is to pay 84% of the appellant's ordinary costs, reflecting the proportion of reduction in liability achieved on appeal. For trial costs, as the appellant was largely but not wholly successful, it is appropriate the appellant pay 40% of the respondent's costs, acknowledging both the overlapping issues and the partial success of each party.

Court Disposition

Orders as to costs varied after appeal and upon further submissions.

Orders

  • Vary order 4 made on 27 August 2024: The respondent is to pay 84% of the appellant's costs of the appeal incurred on or before 17 June 2024 assessed on the ordinary basis, and the appellant's costs of the appeal after 17 June 2024 assessed on an indemnity basis.
  • The defendant (Michael Hill) is to pay 40% of the plaintiff's (Gispac Pty Ltd's) costs of the trial.