Validus Advisory Group Pty v Consolidated Tin Mines Ltd [2017] NSWSC 1352

Validus Advisory Group Pty v Consolidated Tin Mines Ltd [2017] NSWSC 1352

The plaintiff's late, unwritten offer of $50,000 within 28 days and a further $50,000 six weeks before any final hearing did not justify awarding it costs because the order for $85,000 within 28 days was not less favourable to the defendant, the later payment was effectively uncertain if the proceedings ended before a hearing date, and the defendant's rejection was not unreasonable. However, because the defendant made no counter-proposal despite the plaintiff accepting that security of at least $50,000 should be provided, and because the defendant had sought significantly more than the $85,000 ordered, the defendant was not entirely successful and a varied costs order was appropriate.

Jurisdiction
Australia
Judgment Date
05 October 2017
Procedural Posture
Application for Security for Costs; Costs of the Application / Costs Determination After Order That the Plaintiff Provide Security for the Defendant's Costs
Outcome
Costs orders made partly in favour of the defendant for costs up to 20 July 2017, with each party to bear its own costs from 21 July 2017 onward.
Legal Topics
['security for Costs' 'costs Follow the Event' 'calderbank Offers' 'interlocutory Application Costs']
['costs' 'civil Procedure'] ['security for Costs' 'costs Follow the Event' 'calderbank Offers' 'interlocutory Application Costs']

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 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Security for Costs; Costs of the Application / Costs Determination After Order That the Plaintiff Provide Security for the Defendant's Costs

Legal Issues

  1. 1 ['Whether the successful defendant on an application for security for costs should receive its costs of the application or whether each party should bear its own costs.' "Whether the plaintiff's settlement offer concerning security for costs justified a different costs order." "Whether the defendant's rejection of the plaintiff's offer was unreasonable."]

Ratio Decidendi

The plaintiff's late, unwritten offer of $50,000 within 28 days and a further $50,000 six weeks before any final hearing did not justify awarding it costs because the order for $85,000 within 28 days was not less favourable to the defendant, the later payment was effectively uncertain if the proceedings ended before a hearing date, and the defendant's rejection was not unreasonable. However, because the defendant made no counter-proposal despite the plaintiff accepting that security of at least $50,000 should be provided, and because the defendant had sought significantly more than the $85,000 ordered, the defendant was not entirely successful and a varied costs order was appropriate.

Court Disposition

Costs orders made partly in favour of the defendant for costs up to 20 July 2017, with each party to bear its own costs from 21 July 2017 onward.

Orders

  • ["The plaintiff is to pay the defendant's costs of and associated with the application for security for costs up to and including Thursday, 20 July 2017." 'Each party is to bear its own costs of the application for security for costs on and from Friday, 21 July 2017 including the costs of the hearing on 24 July...