Alora Davies Developments 104 Pty Ltd (in liq) & Ors v Raphael & Anor [2024] NSWSC 735

Alora Davies Developments 104 Pty Ltd (in liq) & Ors v Raphael & Anor [2024] NSWSC 735

Indemnity costs were refused because the Plaintiffs' success on the VPA Transaction depended on a significant late amendment, so the Defendants' earlier rejection of Calderbank offers made by reference to the then-pleaded case was not shown to be unreasonable. A gross sum costs order was refused because the different scope of the cases against the Defendants, the involvement of claims against the Fourth Defendant, and the Plaintiffs' inclusion of unrecoverable costs meant the Court could not fairly or reliably fix a gross sum. The Plaintiffs had practical success overall and the unsuccessful claims were not dominant or sufficiently significant to warrant apportionment, so ordinary costs...

Jurisdiction
Australia
Judgment Date
18 June 2024
Procedural Posture
Costs in Equity Corporations List Proceedings / Costs Determination on the Papers After Primary Judgment
Outcome
Indemnity costs and gross sum costs orders refused; ordinary costs awarded to the Plaintiffs.
Legal Topics
['indemnity Costs' 'calderbank Offers' 'gross Sum Costs Orders' 'ordinary Basis Costs' 'costs Follow the Event']
['costs' 'corporations' 'insolvency'] ['indemnity Costs' 'calderbank Offers' 'gross Sum Costs Orders' 'ordinary Basis Costs' 'costs Follow the Event']

Case Brief

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Procedural Posture

Costs in Equity Corporations List Proceedings / Costs Determination on the Papers After Primary Judgment

Legal Issues

  1. 1 ['Whether indemnity costs should be awarded against the Defendants on Calderbank principles.' 'Whether it was unreasonable for the Defendants not to accept Calderbank offers made by the Plaintiffs.' 'Whether a gross sum costs order should be made on an indemnity or ordinary basis.' 'Whether costs should instead be ordered on the ordinary basis as agreed or assessed.']

Ratio Decidendi

Indemnity costs were refused because the Plaintiffs' success on the VPA Transaction depended on a significant late amendment, so the Defendants' earlier rejection of Calderbank offers made by reference to the then-pleaded case was not shown to be unreasonable. A gross sum costs order was refused because the different scope of the cases against the Defendants, the involvement of claims against the Fourth Defendant, and the Plaintiffs' inclusion of unrecoverable costs meant the Court could not fairly or reliably fix a gross sum. The Plaintiffs had practical success overall and the unsuccessful claims were not dominant or sufficiently significant to warrant apportionment, so ordinary costs...

Court Disposition

Indemnity costs and gross sum costs orders refused; ordinary costs awarded to the Plaintiffs.

Orders

  • ['The First and Second Defendants pay the costs of the proceedings against them, and the Third Defendant pay the costs of the proceedings against it, on an ordinary basis as agreed or as assessed.']