CSR LTD v AMACA PTY LTD (No 2) [2009] NSWCA 426

CSR LTD v AMACA PTY LTD (No 2) [2009] NSWCA 426

CSR and Midalco are entitled to indemnity costs in the Dust Diseases Tribunal from 1 December 2007, being the date from which a genuine offer of compromise was made, but only party/party costs prior to that date as earlier letters did not constitute a genuine compromise.

Parties
First Appellant: CSR Ltd; Second Appellant: Midalco Pty Ltd; Respondent: Amaca Pty Ltd
Jurisdiction
Australia
Judgment Date
23 December 2009
Procedural Posture
Costs Judgment, Consequential Orders on Appeal / Post Judgment (costs Determination After Substantive Appeal Decision)
Outcome
Varied costs order: Party/party costs up to 30 November 2007; indemnity costs from 1 December 2007; each party to bear its own costs of the 2 November 2009 motion.
Legal Topics
Costs, Indemnity Costs, Calderbank Offers
Civil Procedure Costs Indemnity Costs Calderbank Offers

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Parties

CSR Ltd

First Appellant

Midalco Pty Ltd

Second Appellant

Amaca Pty Ltd

Respondent

Procedural Posture

Costs Judgment, Consequential Orders on Appeal / Post Judgment (costs Determination After Substantive Appeal Decision)

Legal Issues

  1. 1 Whether indemnity costs should be ordered
  2. 2 Whether Calderbank letters constituted genuine offers of compromise

Ratio Decidendi

CSR and Midalco are entitled to indemnity costs in the Dust Diseases Tribunal from 1 December 2007, being the date from which a genuine offer of compromise was made, but only party/party costs prior to that date as earlier letters did not constitute a genuine compromise.

Court Disposition

Varied costs order: Party/party costs up to 30 November 2007; indemnity costs from 1 December 2007; each party to bear its own costs of the 2 November 2009 motion.

Orders

  • Vary order 2(b) made on 19 October 2009 to 'cross-claimant pay the costs of the cross-defendants of the proceedings in the Dust Diseases Tribunal on the cross-claim on a party/party basis up to 30 November 2007 and on an indemnity basis from 1 December 2007'.
  • Each party to bear its own costs of the motion dated and filed 2 November 2009.