Favotto Family Restaurants Pty Ltd v Chief Commissioner of State Revenue (No 2) [2020] NSWSC 519

Favotto Family Restaurants Pty Ltd v Chief Commissioner of State Revenue (No 2) [2020] NSWSC 519

Indemnity costs were refused because, although the offer allowed sufficient time for acceptance, was clear, foreshadowed an indemnity costs application, was not too early, and did not require complete capitulation, Favotto did not establish that the Chief Commissioner's non-acceptance was unreasonable. The unresolved meaning of the franchise rights intangible gave the Chief Commissioner a reasonable basis for the contentions advanced, the result was not a foregone conclusion, the case was not shown to be hopeless or conducted in bad faith, and the ultimate failure of the Chief Commissioner's case did not make it unreasonable to defend the proceeding.

Jurisdiction
Australia
Judgment Date
08 May 2020
Procedural Posture
Costs Application Following Review of Duty Assessments / Notice of Motion for Indemnity Costs After Principal Judgment; Determined on the Papers
Outcome
Notice of motion dismissed with costs; application for indemnity costs refused.
Legal Topics
['indemnity Costs' 'calderbank Offer' 'duty Assessments' 'reasonableness of Non Acceptance of Settlement Offer']
['costs' 'taxation and Revenue' 'stamp Duty'] ['indemnity Costs' 'calderbank Offer' 'duty Assessments' 'reasonableness of Non Acceptance of Settlement Offer']

Case Brief

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Procedural Posture

Costs Application Following Review of Duty Assessments / Notice of Motion for Indemnity Costs After Principal Judgment; Determined on the Papers

Legal Issues

  1. 1 ["Whether Favotto's informal Calderbank offer was a genuine offer of compromise." 'Whether it was unreasonable for the Chief Commissioner not to accept the offer dated 5 December 2017.' 'Whether Favotto should receive indemnity costs from 5 December 2017 rather than ordinary costs.']

Ratio Decidendi

Indemnity costs were refused because, although the offer allowed sufficient time for acceptance, was clear, foreshadowed an indemnity costs application, was not too early, and did not require complete capitulation, Favotto did not establish that the Chief Commissioner's non-acceptance was unreasonable. The unresolved meaning of the franchise rights intangible gave the Chief Commissioner a reasonable basis for the contentions advanced, the result was not a foregone conclusion, the case was not shown to be hopeless or conducted in bad faith, and the ultimate failure of the Chief Commissioner's case did not make it unreasonable to defend the proceeding.

Court Disposition

Notice of motion dismissed with costs; application for indemnity costs refused.

Orders

  • ['Dismiss the notice of motion filed on 6 March 2020 with costs.']