Conditionex Design & Construct Pty Ltd trading as Conditionex Mechanical Services v Nationwide Builders Pty Ltd (No 4) [2022] NSWDC 599

Conditionex Design & Construct Pty Ltd trading as Conditionex Mechanical Services v Nationwide Builders Pty Ltd (No 4) [2022] NSWDC 599

The plaintiff's 26 April 2022 offer of compromise was made at an advanced stage, allowed 28 days for acceptance, discounted the plaintiff's claim, and was reasonable in circumstances where the defendant's cross-claim was ill-defined and procedurally deficient because no sufficient Scott Schedule or cogent supporting evidence had been served. The defendant acted unreasonably in refusing that offer, justifying indemnity costs from 27 April 2022. The earlier 20 May 2021 offer was too peremptory to support indemnity costs, later offers did not displace the significance of the 26 April 2022 offer, and the existing equal-sharing order for the Referee's costs should remain because both parties...

Jurisdiction
Australia
Judgment Date
02 December 2022
Procedural Posture
Civil Costs Determination / Application for Indemnity Costs Determined on the Papers After Judgment for the Plaintiff and Dismissal of the Cross Claim
Outcome
Indemnity costs ordered from 27 April 2022 for the principal claim and cross-claim; previous equal-sharing order for Referee costs confirmed.
Legal Topics
['indemnity Costs' 'calderbank Offers' 'offer of Compromise' "referee's Report Costs" 'scott Schedule' 'litigation Delinquency']
['civil Procedure' 'costs'] ['indemnity Costs' 'calderbank Offers' 'offer of Compromise' "referee's Report Costs" 'scott Schedule' 'litigation Delinquency']

Case Brief

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Procedural Posture

Civil Costs Determination / Application for Indemnity Costs Determined on the Papers After Judgment for the Plaintiff and Dismissal of the Cross Claim

Legal Issues

  1. 1 ["Whether the defendant should pay the plaintiff's costs of the principal claim and cross-claim on an indemnity basis after refusing settlement offers." "Whether the plaintiff's settlement offers were genuine and reasonable compromises or amounted to demands for capitulation." 'Whether the previous order that the parties equally bear the costs of the reference to the Referee should be varied.']

Ratio Decidendi

The plaintiff's 26 April 2022 offer of compromise was made at an advanced stage, allowed 28 days for acceptance, discounted the plaintiff's claim, and was reasonable in circumstances where the defendant's cross-claim was ill-defined and procedurally deficient because no sufficient Scott Schedule or cogent supporting evidence had been served. The defendant acted unreasonably in refusing that offer, justifying indemnity costs from 27 April 2022. The earlier 20 May 2021 offer was too peremptory to support indemnity costs, later offers did not displace the significance of the 26 April 2022 offer, and the existing equal-sharing order for the Referee's costs should remain because both parties...

Court Disposition

Indemnity costs ordered from 27 April 2022 for the principal claim and cross-claim; previous equal-sharing order for Referee costs confirmed.

Orders

  • ["The defendant is to pay the plaintiff's costs of the proceedings against the defendant on the ordinary basis until 26 April 2022, and on the indemnity basis from 27 April 2022." "The defendant/cross-claimant is to pay the plaintiff/cross-defendant's costs of the cross-claim on the ordinary basis until 26 April...