The Owners – Strata Plan No 90189 v Parkview Constructions Pty Ltd (No 2) [2022] NSWSC 1477

The Owners – Strata Plan No 90189 v Parkview Constructions Pty Ltd (No 2) [2022] NSWSC 1477

The first defendant's rejection of the Calderbank "walk away" offer was unreasonable. The plaintiff had sent repeated and reasoned requests before and after filing of the motion explaining why the application would fail; the motion was more strange than novel, was effectively a pleadings or strike out dispute framed as a section 192A evidence application, was inconsistent with the procedural course set by Hammerschlag J, and had no real prospect of persuading the Court on such a motion not to follow the recent decision in The Owners - Strata Plan No 90018 v Parkview Constructions Pty Ltd. The plaintiff's offer to bear its own costs was the only meaningful compromise available to resolve...

Jurisdiction
Australia
Judgment Date
28 October 2022
Procedural Posture
Costs Application in the Equity Technology and Construction List / Application for Indemnity Costs After Dismissal of the First Defendant's Motion for an Advance Ruling Under Section 192 a of the Evidence Act 1995 (nsw)
Outcome
Indemnity costs ordered from 26 August 2022, with party and party costs until 25 August 2022.
Legal Topics
['indemnity Costs' 'calderbank Offer' 'walk Away Offer' 'advance Ruling on Evidence' 'scott Schedule' 'pleading and Particulars of Building Defects']
['costs' 'evidence' 'civil Procedure' 'building and Construction'] ['indemnity Costs' 'calderbank Offer' 'walk Away Offer' 'advance Ruling on Evidence' 'scott Schedule' 'pleading and Particulars of Building Defects']

Case Brief

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Procedural Posture

Costs Application in the Equity Technology and Construction List / Application for Indemnity Costs After Dismissal of the First Defendant's Motion for an Advance Ruling Under Section 192 a of the Evidence Act 1995 (nsw)

Legal Issues

  1. 1 ['Whether the plaintiff should receive indemnity costs because the first defendant rejected a Calderbank "walk away" offer before its section 192A motion was dismissed.' "Whether it was unreasonable for the first defendant to refuse the plaintiff's offer to have the motion dismissed with no order as to costs." "Whether the nature and prospects of the first defendant's motion justified departure from the usual costs basis."]

Ratio Decidendi

The first defendant's rejection of the Calderbank "walk away" offer was unreasonable. The plaintiff had sent repeated and reasoned requests before and after filing of the motion explaining why the application would fail; the motion was more strange than novel, was effectively a pleadings or strike out dispute framed as a section 192A evidence application, was inconsistent with the procedural course set by Hammerschlag J, and had no real prospect of persuading the Court on such a motion not to follow the recent decision in The Owners - Strata Plan No 90018 v Parkview Constructions Pty Ltd. The plaintiff's offer to bear its own costs was the only meaningful compromise available to resolve...

Court Disposition

Indemnity costs ordered from 26 August 2022, with party and party costs until 25 August 2022.

Orders

  • ["Order the first defendant to pay the plaintiff's costs of the amended motion dated 15 August 2022 on a party and party basis until 25 August 2022 and on an indemnity basis from 26 August 2022."]