Valmont Interiors Pty Limited v Giorgio Armani Australia Pty Limited (No. 2) [2021] NSWDC 9

Valmont Interiors Pty Limited v Giorgio Armani Australia Pty Limited (No. 2) [2021] NSWDC 9

Because the plaintiff did not oppose the set off application, it was appropriate to order set off under s 96(2) of the Civil Procedure Act 2005. The defendant's settlement offers contained real and genuine elements of compromise, and in the context of long-running proceedings, extensive evidence, large likely costs, known issues, and the plaintiff's weak position on whether its quotation formed part of the contract, the plaintiff's rejection of both offers was unreasonable. That justified vacating the previous costs order and ordering the plaintiff to pay the defendant's costs on an ordinary basis up to and including 23 April 2020 and on an indemnity basis thereafter.

Jurisdiction
Australia
Judgment Date
12 February 2021
Procedural Posture
Civil Costs Motion / Determined on the Papers After Primary Judgment; Defendant's Amended Notice of Motion Sought Set Off of Judgments and Variation of Costs Orders
Outcome
Defendant's amended notice of motion granted; judgments set off and costs orders varied in favour of the defendant.
Legal Topics
['set Off of Judgments' 'variation of Costs Orders' 'calderbank Offers' 'indemnity Costs' 'ordinary Costs']
['costs' 'civil Procedure'] ['set Off of Judgments' 'variation of Costs Orders' 'calderbank Offers' 'indemnity Costs' 'ordinary Costs']

Case Brief

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Procedural Posture

Civil Costs Motion / Determined on the Papers After Primary Judgment; Defendant's Amended Notice of Motion Sought Set Off of Judgments and Variation of Costs Orders

Legal Issues

  1. 1 ['Whether the judgments entered for each party on 27 August 2020 should be set off against each other under s 96 of the Civil Procedure Act 2005.' "Whether the plaintiff's rejection of the defendant's settlement offers was unreasonable so as to justify an indemnity costs order." 'Whether previous costs orders should be vacated or varied.']

Ratio Decidendi

Because the plaintiff did not oppose the set off application, it was appropriate to order set off under s 96(2) of the Civil Procedure Act 2005. The defendant's settlement offers contained real and genuine elements of compromise, and in the context of long-running proceedings, extensive evidence, large likely costs, known issues, and the plaintiff's weak position on whether its quotation formed part of the contract, the plaintiff's rejection of both offers was unreasonable. That justified vacating the previous costs order and ordering the plaintiff to pay the defendant's costs on an ordinary basis up to and including 23 April 2020 and on an indemnity basis thereafter.

Court Disposition

Defendant's amended notice of motion granted; judgments set off and costs orders varied in favour of the defendant.

Orders

  • ['The following judgments entered on 27 August 2020 be set off against each other with effect from the date of these orders: the judgment in favour of the plaintiff in the sum of $130,973.00; and the judgment in favour of the defendant on the cross-claim in the sum of $235,611.29.' 'Order 3 made on 27 August 2020 be...