Sural SpA & Anor v Downer EDI Rail Pty Limited [2007] NSWSC 1292

Sural SpA & Anor v Downer EDI Rail Pty Limited [2007] NSWSC 1292

It was not unreasonable for Sural SpA to reject the 25 August 2005 Calderbank offer because the cash obligation was close to the judgment amount taking interest into account and Downer had not then provided sufficient particulars or evidence to permit proper assessment of the quantum of its damages claim. By the 9 August 2006 offer, Downer had provided substantially all principal evidence supporting its cross-claim, including Mr Masters' affidavit and detailed supporting materials, and the offer was substantially more favourable than the judgment exposure plus costs; rejection of that offer was unreasonable. Downer was therefore entitled to party/party costs up to 6 September 2006 and...

Jurisdiction
Australia
Judgment Date
14 November 2007
Procedural Posture
Costs Application Following Judgment in Proceedings / Determination of Costs After Judgment
Outcome
Costs ordered on a party/party basis up to 6 September 2006 and on an indemnity basis thereafter.
Legal Topics
['indemnity Costs' 'calderbank Offers' 'offers of Compromise' 'party/party Costs']
['civil Procedure' 'costs'] ['indemnity Costs' 'calderbank Offers' 'offers of Compromise' 'party/party Costs']

Case Brief

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Procedural Posture

Costs Application Following Judgment in Proceedings / Determination of Costs After Judgment

Legal Issues

  1. 1 ["Whether Sural SpA's failure to accept any of Downer's Calderbank offers was unreasonable so as to warrant indemnity costs." 'From what date, if any, Downer should receive costs on an indemnity basis.']

Ratio Decidendi

It was not unreasonable for Sural SpA to reject the 25 August 2005 Calderbank offer because the cash obligation was close to the judgment amount taking interest into account and Downer had not then provided sufficient particulars or evidence to permit proper assessment of the quantum of its damages claim. By the 9 August 2006 offer, Downer had provided substantially all principal evidence supporting its cross-claim, including Mr Masters' affidavit and detailed supporting materials, and the offer was substantially more favourable than the judgment exposure plus costs; rejection of that offer was unreasonable. Downer was therefore entitled to party/party costs up to 6 September 2006 and...

Court Disposition

Costs ordered on a party/party basis up to 6 September 2006 and on an indemnity basis thereafter.

Orders

  • ["The first plaintiff pay the defendant/cross-claimant's costs of the proceedings on a party/party basis up to 6 September 2006 and on an indemnity basis thereafter."]