Golden Destiny Investments Pty Ltd v McCrohon Bergseng Partners t/as MBP Legal (No. 2) [2016] NSWSC 1794

Golden Destiny Investments Pty Ltd v McCrohon Bergseng Partners t/as MBP Legal (No. 2) [2016] NSWSC 1794

The Defendants were not entitled to indemnity costs because their $1500 offer was not a genuine offer of compromise: it was made from a position in which they considered themselves on very strong ground, amounted to only about half the filing fee, and was a call for GDI to capitulate in proceedings requiring a discretionary evaluative decision. In any event, it was not unreasonable for GDI to reject the offer because the proceedings were at a very early stage, the Defendants' alleged prejudice was not yet evidenced and was difficult to assess given the invoices had been paid, the seven-day acceptance period was not reasonable in the circumstances, and the other five plaintiffs had not yet...

Jurisdiction
Australia
Judgment Date
16 December 2016
Procedural Posture
Application for Indemnity Costs and Interest on Costs After Dismissal of Amended Summons Seeking Extension of Time to Have Legal Costs Assessed / On the Papers
Outcome
The Defendants' application for indemnity costs was dismissed, and the Defendants were ordered to pay the costs of the application. The request concerning interest on costs was described as misconceived.
Legal Topics
['indemnity Costs' 'calderbank Offer' 'genuine Offer of Compromise' 'unreasonable Refusal of Offer' 'extension of Time for Costs Assessment' 'interest on Costs']
['civil Procedure' 'costs' 'legal Profession'] ['indemnity Costs' 'calderbank Offer' 'genuine Offer of Compromise' 'unreasonable Refusal of Offer' 'extension of Time for Costs Assessment' 'interest on Costs']

Case Brief

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Procedural Posture

Application for Indemnity Costs and Interest on Costs After Dismissal of Amended Summons Seeking Extension of Time to Have Legal Costs Assessed / On the Papers

Legal Issues

  1. 1 ["Whether the Defendants' offer to pay $1500 in full and final settlement was a genuine offer of compromise for Calderbank costs purposes." 'Whether it was unreasonable for Golden Destiny Investments Pty Ltd not to accept the offer.' 'Whether indemnity costs should be ordered against parties who were not plaintiffs when the offer was made.' "Whether the Defendants' request for an order concerning interest on costs under s 101 was misconceived."]

Ratio Decidendi

The Defendants were not entitled to indemnity costs because their $1500 offer was not a genuine offer of compromise: it was made from a position in which they considered themselves on very strong ground, amounted to only about half the filing fee, and was a call for GDI to capitulate in proceedings requiring a discretionary evaluative decision. In any event, it was not unreasonable for GDI to reject the offer because the proceedings were at a very early stage, the Defendants' alleged prejudice was not yet evidenced and was difficult to assess given the invoices had been paid, the seven-day acceptance period was not reasonable in the circumstances, and the other five plaintiffs had not yet...

Court Disposition

The Defendants' application for indemnity costs was dismissed, and the Defendants were ordered to pay the costs of the application. The request concerning interest on costs was described as misconceived.

Orders

  • ["The Defendants' application for indemnity costs is dismissed." 'The Defendants are to pay the costs of this application.']