L & A Fazzini Pty Ltd v Amaca Pty Ltd [2021] NSWDDT 1

L & A Fazzini Pty Ltd v Amaca Pty Ltd [2021] NSWDDT 1

The first cross-claim was a claim within cl 12 of the Dust Diseases Tribunal Regulation 2019, so Part 5 applied to Amaca's offer. Amaca achieved a more favourable outcome than its offer, cl 90(1) was satisfied, and Fazzini did not contend that the case was exceptional. Amaca was therefore entitled to ordinary costs up to 31 July 2020 and indemnity costs from 1 August 2020.

Jurisdiction
Australia
Judgment Date
03 February 2021
Procedural Posture
Costs Application in Dust Diseases Tribunal Proceedings / Post Dismissal Determination of Costs of the First Cross Claim
Outcome
Order (2) made on 27 November 2020 was set aside and replaced with an order that Fazzini pay Amaca's costs of the first cross-claim on an ordinary basis up to 31 July 2020 and on an indemnity basis from 1 August 2020, as agreed or assessed.
Legal Topics
['offer of Compromise' 'indemnity Costs' 'costs Following the Event' 'calderbank Offer' 'dust Diseases Tribunal Regulation 2019']
['dust Diseases' 'civil Procedure' 'costs'] ['offer of Compromise' 'indemnity Costs' 'costs Following the Event' 'calderbank Offer' 'dust Diseases Tribunal Regulation 2019']

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Procedural Posture

Costs Application in Dust Diseases Tribunal Proceedings / Post Dismissal Determination of Costs of the First Cross Claim

Legal Issues

  1. 1 ['Whether the offer of compromise regime in Part 5 of the Dust Diseases Tribunal Regulation 2019, or alternatively Part 6 of the Dust Diseases Tribunal Regulation 2013, applied to the first cross-claim.' "Whether Amaca's 31 July 2020 offer was an offer of compromise under the Regulation or only a Calderbank offer." 'Whether Amaca was entitled to indemnity costs after obtaining a result more favourable than its offer.']

Ratio Decidendi

The first cross-claim was a claim within cl 12 of the Dust Diseases Tribunal Regulation 2019, so Part 5 applied to Amaca's offer. Amaca achieved a more favourable outcome than its offer, cl 90(1) was satisfied, and Fazzini did not contend that the case was exceptional. Amaca was therefore entitled to ordinary costs up to 31 July 2020 and indemnity costs from 1 August 2020.

Court Disposition

Order (2) made on 27 November 2020 was set aside and replaced with an order that Fazzini pay Amaca's costs of the first cross-claim on an ordinary basis up to 31 July 2020 and on an indemnity basis from 1 August 2020, as agreed or assessed.

Orders

  • ['Order (2) made on 27 November 2020 is set aside and is to be replaced with order (2) below.' "Fazzini is to pay Amaca's costs of the first cross-claim on the ordinary basis up to 31 July 2020 and on the indemnity basis from 1 August 2020, as agreed or assessed."]