Dunbrae Pty Ltd v Armani Restaurant Pty Ltd (No. 3) [2023] NSWDC 32

Dunbrae Pty Ltd v Armani Restaurant Pty Ltd (No. 3) [2023] NSWDC 32

Each party was predominantly and vastly unsuccessful in the case it prosecuted, with only minimal invoice-based recovery and failures largely resulting from inadequate proof. The Defendant/Cross-Claimant's Calderbank offers were not left open for a reasonable time, and although its 6 July 2022 offer was monetarily reasonable, the proceedings as determined ought to have been conducted in the Local Court. In those circumstances, no party should receive a costs order and each should bear its own costs, subject to earlier costs orders being preserved.

Jurisdiction
Australia
Judgment Date
16 February 2023
Procedural Posture
Civil Costs Decision / Ex Tempore Judgment on Reserved Question of Costs After Principal Judgment
Outcome
Each party ordered to bear its own costs of the proceedings, with preceding costs orders maintained; security paid into court to be paid out to the Defendant/Cross-Claimant.
Legal Topics
['costs Discretion' 'calderbank Offers' 'costs Following the Event' 'proceedings Warranted in District Court' 'security Paid Into Court']
['costs' 'civil Procedure' 'australian Consumer Law' 'contract'] ['costs Discretion' 'calderbank Offers' 'costs Following the Event' 'proceedings Warranted in District Court' 'security Paid Into Court']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Civil Costs Decision / Ex Tempore Judgment on Reserved Question of Costs After Principal Judgment

Legal Issues

  1. 1 ['Whether the usual order that costs follow the event should apply where each party succeeded only minimally and was unsuccessful in the vast majority of its claims.' 'Whether Calderbank offers made by the Defendant/Cross-Claimant on 2 July 2022 and 6 July 2022 justified costs orders in its favour after those dates.' 'Whether the commencement and continuation of proceedings in the District Court rather than the Local Court was warranted for the purposes of UCPR r 42.35.' 'Whether security paid into court by the Defendant/Cross-Claimant should be paid out to it.']

Ratio Decidendi

Each party was predominantly and vastly unsuccessful in the case it prosecuted, with only minimal invoice-based recovery and failures largely resulting from inadequate proof. The Defendant/Cross-Claimant's Calderbank offers were not left open for a reasonable time, and although its 6 July 2022 offer was monetarily reasonable, the proceedings as determined ought to have been conducted in the Local Court. In those circumstances, no party should receive a costs order and each should bear its own costs, subject to earlier costs orders being preserved.

Court Disposition

Each party ordered to bear its own costs of the proceedings, with preceding costs orders maintained; security paid into court to be paid out to the Defendant/Cross-Claimant.

Orders

  • ['Each party is to bear their own costs of the proceedings save that all preceding costs orders are maintained.' 'The amount of security paid into court by the Defendant/Cross-Claimant on 3 June 2021 in compliance with an order by consent made 6 May 2021 is to be paid out to the Defendant/Cross-Claimant.']