Automotive Holdings Group Ltd v Prime Constructions Australia Pty Ltd (No. 2) [2019] NSWSC 315

Automotive Holdings Group Ltd v Prime Constructions Australia Pty Ltd (No. 2) [2019] NSWSC 315

It was reasonable for the plaintiff to refuse the offer of compromise and Calderbank offer because, at the time those offers were made, the core element of the change of position defence was not clearly pleaded by Ms Tsirekas, and the essential information needed to properly assess the defence was not articulated in the pleadings, though present in evidence. As a result, indemnity costs were not justified.

Jurisdiction
Australia
Judgment Date
26 March 2019
Procedural Posture
Civil (equity) / Costs Determination Following Final Judgment
Outcome
Application for indemnity costs dismissed; ordinary costs regime upheld for the substantive proceeding; costs of the present application awarded to plaintiff.
Legal Topics
['costs' 'indemnity Costs' 'offer of Compromise' 'calderbank Offer' 'change of Position Defence']
['civil Procedure'] ['costs' 'indemnity Costs' 'offer of Compromise' 'calderbank Offer' 'change of Position Defence']

Case Brief

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Procedural Posture

Civil (equity) / Costs Determination Following Final Judgment

Legal Issues

  1. 1 ['Whether indemnity costs should be awarded to the third defendant following an offer of compromise and Calderbank offer; Whether refusal to accept the offer was unreasonable given the pleadings and stage of proceedings; Whether the change of position defence was adequately pleaded at the time of the offer']

Ratio Decidendi

It was reasonable for the plaintiff to refuse the offer of compromise and Calderbank offer because, at the time those offers were made, the core element of the change of position defence was not clearly pleaded by Ms Tsirekas, and the essential information needed to properly assess the defence was not articulated in the pleadings, though present in evidence. As a result, indemnity costs were not justified.

Court Disposition

Application for indemnity costs dismissed; ordinary costs regime upheld for the substantive proceeding; costs of the present application awarded to plaintiff.

Orders

  • ["The plaintiff shall pay the third defendant's costs of the proceedings on the ordinary basis, up until 20 December 2018." "The third defendant will pay the plaintiff's costs of this application on the ordinary basis." 'All Exhibits to be retained on the Court file for 28 days or until time for appeal expires, then...