Western Freight Management Pty Ltd v Toll Transport Pty Ltd (No 2) [2023] NSWDC 575

Western Freight Management Pty Ltd v Toll Transport Pty Ltd (No 2) [2023] NSWDC 575

Toll's Calderbank offer and formal UCPR r 20.26 offer were genuine offers of compromise capable of acceptance, and the refusal by Western Freight Management Pty Ltd to accept them was unreasonable under the circumstances. Toll is therefore entitled to indemnity costs of the proceedings, with particular orders regarding the Notice of Motion and costs events during the litigation.

Parties
Plaintiff/cross Defendant/respondent: Western Freight Management Pty Ltd; Defendant/cross Claimant/applicant: Toll Transport Pty Ltd
Jurisdiction
Australia
Judgment Date
08 December 2023
Procedural Posture
Civil / Notice of Motion for Costs Following Judgment
Outcome
Orders made for Plaintiff to pay Defendant's costs of the proceedings on an indemnity basis, with ordinary costs as to Notice of Motion.
Legal Topics
Indemnity Costs, Calderbank Offer, Formal Offer of Compromise, Vacation of Hearing, Amendment of Pleadings, Uniform Civil Procedure Rules
Costs Indemnity Costs Calderbank Offer Formal Offer of Compromise Vacation of Hearing Amendment of Pleadings Uniform Civil Procedure Rules

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Parties

Western Freight Management Pty Ltd

Plaintiff/cross Defendant/respondent

Toll Transport Pty Ltd

Defendant/cross Claimant/applicant

Procedural Posture

Civil / Notice of Motion for Costs Following Judgment

Legal Issues

  1. 1 Whether Toll Transport Pty Ltd is entitled to indemnity costs based on Calderbank offer and UCPR formal offer of compromise
  2. 2 Assessment of reasonableness of non-acceptance of offers by Western Freight Management Pty Ltd
  3. 3 Whether costs of vacation of hearing and amendments are to be on the ordinary or indemnity basis

Ratio Decidendi

Toll's Calderbank offer and formal UCPR r 20.26 offer were genuine offers of compromise capable of acceptance, and the refusal by Western Freight Management Pty Ltd to accept them was unreasonable under the circumstances. Toll is therefore entitled to indemnity costs of the proceedings, with particular orders regarding the Notice of Motion and costs events during the litigation.

Court Disposition

Orders made for Plaintiff to pay Defendant's costs of the proceedings on an indemnity basis, with ordinary costs as to Notice of Motion.

Orders

  • Vacate all prior costs orders.
  • The Plaintiff/Cross Defendant/Respondent (Western Freight Management Pty Ltd) to pay the Defendant/Cross Claimant/Applicant's (Toll Transport Pty Ltd) costs of the proceedings on an indemnity basis save as for provided in Order 3 below.