GPG Fortitude Valley v Thakral Capital Australia (No 3 – costs) [2018] NSWSC 1627

GPG Fortitude Valley v Thakral Capital Australia (No 3 – costs) [2018] NSWSC 1627

Thakral acted unreasonably in persisting with the litigation after rejecting GPG's Calderbank offer because the offer made clear that, even if the intermediate construction and breach issues were decided in Thakral's favour, there was no admissible evidence of material adverse effect and therefore the Event of Default issue had to be decided in GPG's favour. The offer contained genuine compromise because GPG offered to forgo its costs to date. Indemnity costs should run from the date of rejection, not the date of the letter, because Thakral was entitled to a reasonable opportunity to consider the offer.

Jurisdiction
Australia
Judgment Date
26 October 2018
Procedural Posture
Costs Application / On the Papers After Substantive Judgment
Outcome
Costs payable on the ordinary basis up until 19 July 2018 and on the indemnity basis thereafter.
Legal Topics
['indemnity Costs' 'calderbank Letter' 'genuine Element of Compromise' 'unreasonable Rejection of Settlement Offer' 'timing of Indemnity Costs']
['costs' 'civil Procedure'] ['indemnity Costs' 'calderbank Letter' 'genuine Element of Compromise' 'unreasonable Rejection of Settlement Offer' 'timing of Indemnity Costs']

Case Brief

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Procedural Posture

Costs Application / On the Papers After Substantive Judgment

Legal Issues

  1. 1 ['Whether the Calderbank letter offered a genuine element of compromise.' 'Whether it was unreasonable for Thakral to reject the offer.' 'Whether indemnity costs should be payable from the date of the letter or from the date of rejection.']

Ratio Decidendi

Thakral acted unreasonably in persisting with the litigation after rejecting GPG's Calderbank offer because the offer made clear that, even if the intermediate construction and breach issues were decided in Thakral's favour, there was no admissible evidence of material adverse effect and therefore the Event of Default issue had to be decided in GPG's favour. The offer contained genuine compromise because GPG offered to forgo its costs to date. Indemnity costs should run from the date of rejection, not the date of the letter, because Thakral was entitled to a reasonable opportunity to consider the offer.

Court Disposition

Costs payable on the ordinary basis up until 19 July 2018 and on the indemnity basis thereafter.

Orders

  • ['The costs payable pursuant to order 2 made on 3 August 2018 be assessed on the ordinary basis up until 19 July 2018 and on the indemnity basis thereafter.']