Tonk Sydney Pty Ltd v ILend Capital Pty Ltd (No 2) [2024] NSWSC 1532

Tonk Sydney Pty Ltd v ILend Capital Pty Ltd (No 2) [2024] NSWSC 1532

The plaintiffs' offer of compromise dated 30 September 2024 was a compliant offer under UCPR r 20.26, not accepted, and the judgment was no less favourable than the offer. Plaintiffs are entitled to their costs on the ordinary basis up to and including 30 September 2024 and on the indemnity basis thereafter pursuant to UCPR r 42.14. On the evidence and submissions presented, a gross sum costs order in the amount of $172,000 is appropriate, taking into account discounts for pre-agreement costs and the overall reasonableness and proportionality of the claimed costs.

Parties
First Plaintiff: Tonk Sydney Pty Ltd; Second Plaintiff: JDC Project Management Pty Ltd; Third Plaintiff: Domenico Ciliegi; Fourth Plaintiff: Matthew Martino; First Defendant: ILend Capital Pty Ltd; Second Defendant: Marwan Salim
Jurisdiction
Australia
Judgment Date
29 November 2024
Procedural Posture
Equity Proceeding / Post Judgment—application for Costs; Judgment on Costs
Outcome
Plaintiffs awarded costs; defendants to pay a specified gross sum as costs.
Legal Topics
Party/party Costs, Indemnity Costs, Offer of Compromise, Calderbank Offer, Gross/lump Sum Costs Order
Civil Procedure Costs Party/party Costs Indemnity Costs Offer of Compromise Calderbank Offer Gross/lump Sum Costs Order

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 12 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Tonk Sydney Pty Ltd

First Plaintiff

JDC Project Management Pty Ltd

Second Plaintiff

Domenico Ciliegi

Third Plaintiff

Matthew Martino

Fourth Plaintiff

ILend Capital Pty Ltd

First Defendant

Marwan Salim

Second Defendant

Procedural Posture

Equity Proceeding / Post Judgment—application for Costs; Judgment on Costs

Legal Issues

  1. 1 Whether plaintiffs are entitled to indemnity costs from date of offer of compromise
  2. 2 Whether a gross sum (lump sum) costs order should be made instead of assessed costs

Ratio Decidendi

The plaintiffs' offer of compromise dated 30 September 2024 was a compliant offer under UCPR r 20.26, not accepted, and the judgment was no less favourable than the offer. Plaintiffs are entitled to their costs on the ordinary basis up to and including 30 September 2024 and on the indemnity basis thereafter pursuant to UCPR r 42.14. On the evidence and submissions presented, a gross sum costs order in the amount of $172,000 is appropriate, taking into account discounts for pre-agreement costs and the overall reasonableness and proportionality of the claimed costs.

Court Disposition

Plaintiffs awarded costs; defendants to pay a specified gross sum as costs.

Orders

  • Order varying order 6 of 25 October 2024 so that the first and second defendants are to pay the plaintiffs' costs on the ordinary basis up to and including 30 September 2024 and on the indemnity basis thereafter.
  • Order pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW) that the costs to be paid by the first and second defendants to the plaintiffs are specified in the gross sum of $172,000 instead of assessed costs.