ADH Plumbing Pty Ltd v Glenashka Pty Ltd as Trustee of the Colin Henry Wilson Trading Trust trading as Wilsons Betamix Goonumbla Quarry & Wilsons Betamix Concrete and Another (No 2) [2020] NSWDC 790

ADH Plumbing Pty Ltd v Glenashka Pty Ltd as Trustee of the Colin Henry Wilson Trading Trust trading as Wilsons Betamix Goonumbla Quarry & Wilsons Betamix Concrete and Another (No 2) [2020] NSWDC 790

The Court rejected the applications for indemnity costs because, although the offers constituted valid Calderbank offers and involved compromise, the plaintiff's rejection of the offers was not unreasonable considering the circumstances, including uncertainties in the terms and the complexity of the case. However, the Court held it was appropriate to make a third-party costs order against Mr Adam Hewes as he had provided an explicit undertaking to the Court to be jointly and severally liable for costs, over and above the guarantee within the Deed.

Jurisdiction
Australia
Judgment Date
16 December 2020
Procedural Posture
Civil / Post Judgment Costs Application
Outcome
Indemnity costs application rejected; third party costs order made against Mr Adam Hewes; parties to pay own costs of the current application.
Legal Topics
['costs' 'indemnity Costs' 'calderbank Offers' 'third Party Costs Order']
['civil Procedure'] ['costs' 'indemnity Costs' 'calderbank Offers' 'third Party Costs Order']

Case Brief

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Procedural Posture

Civil / Post Judgment Costs Application

Legal Issues

  1. 1 ['Whether indemnity costs should be awarded to the defendant based on Calderbank offers' 'Whether third party costs order should be made against Mr Adam Hewes']

Ratio Decidendi

The Court rejected the applications for indemnity costs because, although the offers constituted valid Calderbank offers and involved compromise, the plaintiff's rejection of the offers was not unreasonable considering the circumstances, including uncertainties in the terms and the complexity of the case. However, the Court held it was appropriate to make a third-party costs order against Mr Adam Hewes as he had provided an explicit undertaking to the Court to be jointly and severally liable for costs, over and above the guarantee within the Deed.

Court Disposition

Indemnity costs application rejected; third party costs order made against Mr Adam Hewes; parties to pay own costs of the current application.

Orders

  • ['The applications of the defendant K & H Geotechnical Services Pty Ltd for indemnity costs orders are rejected.' "Pursuant to s 98(2) of the Civil Procedure Act 2005 (NSW), Mr Adam Hewes is jointly and severally liable to the defendant for the defendant's costs of the proceedings, as agreed or assessed." 'The...