Mackinnon v BlueScope Steel (AIS) Pty Ltd & Ors (No 2) [2009] NSWCA 229

Mackinnon v BlueScope Steel (AIS) Pty Ltd & Ors (No 2) [2009] NSWCA 229

The appellant's Calderbank offer was not a genuine compromise because it provided no concession on costs other than saving future costs, and was ambiguous as to trial costs and respondent scope; thus it was not unreasonable for the first respondent to refuse, and indemnity costs are not warranted. Subject to two Registrar appearances, the general rule applies: the appellant is entitled to his costs of the appeal as successful party.

Jurisdiction
Australia
Judgment Date
31 July 2009
Procedural Posture
Appeal and Cross Appeals / Consequential Orders Post Judgment
Outcome
Appellant’s application for indemnity costs refused. Costs awarded as follows.
Legal Topics
['indemnity Costs' 'calderbank Offers' 'costs Following Event' 'appeal Procedure']
['civil Procedure' 'costs'] ['indemnity Costs' 'calderbank Offers' 'costs Following Event' 'appeal Procedure']

Case Brief

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Procedural Posture

Appeal and Cross Appeals / Consequential Orders Post Judgment

Legal Issues

  1. 1 ['Whether appellant is entitled to indemnity costs following a Calderbank offer' 'Whether the respondent’s refusal of the offer was unreasonable' 'Whether appellant’s conduct of the appeal warrants adjustment to costs order' 'Appropriate costs orders for cross-appeals and applications for leave to appeal']

Ratio Decidendi

The appellant's Calderbank offer was not a genuine compromise because it provided no concession on costs other than saving future costs, and was ambiguous as to trial costs and respondent scope; thus it was not unreasonable for the first respondent to refuse, and indemnity costs are not warranted. Subject to two Registrar appearances, the general rule applies: the appellant is entitled to his costs of the appeal as successful party.

Court Disposition

Appellant’s application for indemnity costs refused. Costs awarded as follows.

Orders

  • ["Except for two Registrar appearances, first respondent to pay appellant's costs of the appeal as agreed or assessed." "Appellant to pay first respondent's costs for Registrar appearance 14 Feb 2008; order for 17 Mar 2008 costs stands as per Registrar." 'First respondent to pay 50% of appellant’s costs of this...