Tred Consultants Pty Ltd v Kirana Training Pty Ltd (No.4) [2021] NSWDC 194

Tred Consultants Pty Ltd v Kirana Training Pty Ltd (No.4) [2021] NSWDC 194

The Court declined to order indemnity costs because, although the defendant/cross-claimant achieved a better result than the Calderbank offers, the offers did not justify the exercise of discretion: the first offer was made when the defendant's evidentiary case and the quantified set-off issues were incomplete, gave no merits-based explanation and allowed only an inadequate time for acceptance; the second offer was ambiguous and rested on unsupported assertions about the defendant's financial position that later events did not bear out; and the third offer allowed a manifestly inadequate time for consideration. Ordinary costs followed the event, and the referee's fees formed part of those...

Jurisdiction
Australia
Judgment Date
24 May 2021
Procedural Posture
Civil Costs Application Following Judgment on a Money Claim and Cross Claim / On the Papers; Determination of Dispositive Orders, Interest and Costs After Reasons for Judgment Delivered on 7 May 2021
Outcome
Amended Statement of Claim dismissed; judgment entered for the cross-claimant; plaintiff ordered to pay the defendant's costs as agreed or assessed, including referee's fees; indemnity costs refused.
Legal Topics
['indemnity Costs' 'calderbank Offers' "referee's Fees" 'set Off' 'cross Claim']
['civil Procedure' 'costs' 'contract'] ['indemnity Costs' 'calderbank Offers' "referee's Fees" 'set Off' 'cross Claim']

Case Brief

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Procedural Posture

Civil Costs Application Following Judgment on a Money Claim and Cross Claim / On the Papers; Determination of Dispositive Orders, Interest and Costs After Reasons for Judgment Delivered on 7 May 2021

Legal Issues

  1. 1 ['Whether the defendant/cross-claimant should receive indemnity costs because the plaintiff/cross-defendant did not accept Calderbank offers dated 25 May 2020, 3 August 2020 and 10 September 2020.' "Whether the plaintiff/cross-defendant's costs liability should include the referee's fees." 'What final monetary and costs orders should be made after set-off between the principal claim and cross-claim.']

Ratio Decidendi

The Court declined to order indemnity costs because, although the defendant/cross-claimant achieved a better result than the Calderbank offers, the offers did not justify the exercise of discretion: the first offer was made when the defendant's evidentiary case and the quantified set-off issues were incomplete, gave no merits-based explanation and allowed only an inadequate time for acceptance; the second offer was ambiguous and rested on unsupported assertions about the defendant's financial position that later events did not bear out; and the third offer allowed a manifestly inadequate time for consideration. Ordinary costs followed the event, and the referee's fees formed part of those...

Court Disposition

Amended Statement of Claim dismissed; judgment entered for the cross-claimant; plaintiff ordered to pay the defendant's costs as agreed or assessed, including referee's fees; indemnity costs refused.

Orders

  • ['The Amended Statement of Claim filed on 26 September 2018 is dismissed.' 'Judgment for the cross-claimant for the sum of $26,741.56 on the cross-claim.' "The plaintiff is to pay the defendant's costs of the proceedings (the Statement of Claim and the cross-claim) as agreed or assessed." 'For the avoidance of...