Toga Pty Ltd v Perpetual Nominees Ltd (No 2) (RLD) [2013] NSWADTAP 15

Toga Pty Ltd v Perpetual Nominees Ltd (No 2) (RLD) [2013] NSWADTAP 15

Toga Pty Ltd's unreasonable rejection of Colonial's Calderbank settlement offer entitles Colonial to party/party costs from 30 August 2011 to the date of decision, but not indemnity costs; contractual provisions of the Sublease and alleged prolongation do not justify an alternative costs basis.

Parties
Appellant / Cross Respondent: Toga Pty Ltd; First Respondent / Cross Appellant: Perpetual Nominees Ltd; Second Respondent / Cross Appellant: CFS Managed Property Ltd
Jurisdiction
Australia
Judgment Date
10 April 2013
Procedural Posture
Appeal / Costs Determination Following Appeal
Outcome
The appellant is ordered to pay respondents' costs at first instance and on appeal as agreed or assessed on a party/party basis from 30 August 2011 to the date of this decision.
Legal Topics
Retail Leases, Costs, Party/party Costs, Calderbank Offers, Lease Interpretation
Commercial Law Property Law Retail Leases Costs Party/party Costs Calderbank Offers Lease Interpretation

Case Brief

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Parties

Toga Pty Ltd

Appellant / Cross Respondent

Perpetual Nominees Ltd

First Respondent / Cross Appellant

CFS Managed Property Ltd

Second Respondent / Cross Appellant

Procedural Posture

Appeal / Costs Determination Following Appeal

Legal Issues

  1. 1 Whether Toga Pty Ltd should pay Colonial's costs of proceedings at first instance and on appeal
  2. 2 Effect of rejection of a Calderbank offer on costs order
  3. 3 Whether clause 3.4 of Sublease entitles Colonial to recover costs

Ratio Decidendi

Toga Pty Ltd's unreasonable rejection of Colonial's Calderbank settlement offer entitles Colonial to party/party costs from 30 August 2011 to the date of decision, but not indemnity costs; contractual provisions of the Sublease and alleged prolongation do not justify an alternative costs basis.

Court Disposition

The appellant is ordered to pay respondents' costs at first instance and on appeal as agreed or assessed on a party/party basis from 30 August 2011 to the date of this decision.

Orders

  • Toga Pty Ltd is to pay the Respondents / Cross Appellants' costs of the proceedings at first instance and on appeal, as agreed or assessed on a party/party basis, from 30 August 2011 to the date of this decision.