CBRE (V) Pty Ltd v City Pacific Ltd (in liq) (No 2) [2022] NSWCA 84

CBRE (V) Pty Ltd v City Pacific Ltd (in liq) (No 2) [2022] NSWCA 84

The formal offer of compromise was more favourable to the appellants than the judgment ultimately obtained, and the respondents did not establish any basis to depart from the presumptive indemnity costs consequence under UCPR r 42.15A because the claims that succeeded at trial were prima facie statute-barred from the outset and the offer of $600,000 plus costs was a significant offer in that context. The Calderbank offer did not justify altering the appeal costs order because it was made eight days before the appeal, remained open for seven days, and would have required companies in liquidation to surrender a judgment and orders worth many millions of dollars for $250,000 shortly before...

Jurisdiction
Australia
Judgment Date
09 June 2022
Procedural Posture
Costs Motion to Vary Costs Orders After Successful Appeal / On the Papers in the Court of Appeal
Outcome
Motion allowed in part; costs order varied to provide indemnity costs after 3 September 2018, but no additional costs consequence for the Calderbank offer.
Legal Topics
['offer of Compromise' 'indemnity Costs' 'calderbank Offer' 'costs Discretion' 'limitation Defence']
['costs' 'civil Procedure'] ['offer of Compromise' 'indemnity Costs' 'calderbank Offer' 'costs Discretion' 'limitation Defence']

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Procedural Posture

Costs Motion to Vary Costs Orders After Successful Appeal / On the Papers in the Court of Appeal

Legal Issues

  1. 1 ["Whether the appellants' formal offer of compromise warranted indemnity costs from the day after the offer was made under UCPR r 42.15A." 'Whether the respondents established a basis to displace the default costs consequences of the formal offer of compromise.' "Whether the respondents' failure to accept the Calderbank offer warranted a departure from the ordinary rule as to costs under UCPR r 42.1." 'What order should be made as to the costs of the motion.']

Ratio Decidendi

The formal offer of compromise was more favourable to the appellants than the judgment ultimately obtained, and the respondents did not establish any basis to depart from the presumptive indemnity costs consequence under UCPR r 42.15A because the claims that succeeded at trial were prima facie statute-barred from the outset and the offer of $600,000 plus costs was a significant offer in that context. The Calderbank offer did not justify altering the appeal costs order because it was made eight days before the appeal, remained open for seven days, and would have required companies in liquidation to surrender a judgment and orders worth many millions of dollars for $250,000 shortly before...

Court Disposition

Motion allowed in part; costs order varied to provide indemnity costs after 3 September 2018, but no additional costs consequence for the Calderbank offer.

Orders

  • ['Vary order 2 made on 11 April 2022 so that it provides: "Set aside the judgment made on 9 August 2021, and orders 1 and 2 made on 22 March 2022, and in lieu thereof, order that the proceedings be dismissed and the plaintiffs pay the defendants\' costs on the ordinary basis up to 3 September 2018 and on an...