Brookhollow Pty Ltd v R&R Consultants Pty Ltd & Anor (No 2) [2006] NSWSC 200

Brookhollow Pty Ltd v R&R Consultants Pty Ltd & Anor (No 2) [2006] NSWSC 200

The 13 July 2005 offer did not justify indemnity costs because the time allowed for its consideration was unreasonably short. The 11 November 2005 offer was a Calderbank offer, gave a reasonable time for acceptance in the circumstances, and was more favourable to the Plaintiff than the outcome ultimately achieved by the First Defendant; the Plaintiff should therefore pay the First Defendant's costs on an indemnity basis from the close of that offer.

Jurisdiction
Australia
Judgment Date
30 January 2006
Procedural Posture
Equity Division Technology & Construction List Proceedings Concerning Costs / Costs Determination After Judgment
Outcome
Plaintiff's Summons dismissed; Plaintiff ordered to pay the First Defendant's costs on a party/party basis up to and including 15 November 2005 and thereafter on the indemnity basis.
Legal Topics
['indemnity Costs' 'calderbank Offer of Compromise' 'reasonableness of Rejection of Offer' 'time for Acceptance of Settlement Offer']
['civil Procedure' 'costs'] ['indemnity Costs' 'calderbank Offer of Compromise' 'reasonableness of Rejection of Offer' 'time for Acceptance of Settlement Offer']

Case Brief

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Procedural Posture

Equity Division Technology & Construction List Proceedings Concerning Costs / Costs Determination After Judgment

Legal Issues

  1. 1 ["Whether the Plaintiff should pay the First Defendant's costs on an indemnity basis from a date identified by reference to alleged Calderbank offers." 'Whether the letter dated 13 July 2005 was an offer for compromise which the Plaintiff ought reasonably to have accepted.' 'Whether the letter dated 11 November 2005 constituted a Calderbank offer that was unreasonably rejected.' 'Whether a Calderbank offer must disclose the point on which the offeror ultimately succeeds.']

Ratio Decidendi

The 13 July 2005 offer did not justify indemnity costs because the time allowed for its consideration was unreasonably short. The 11 November 2005 offer was a Calderbank offer, gave a reasonable time for acceptance in the circumstances, and was more favourable to the Plaintiff than the outcome ultimately achieved by the First Defendant; the Plaintiff should therefore pay the First Defendant's costs on an indemnity basis from the close of that offer.

Court Disposition

Plaintiff's Summons dismissed; Plaintiff ordered to pay the First Defendant's costs on a party/party basis up to and including 15 November 2005 and thereafter on the indemnity basis.

Orders

  • ["The Plaintiff's Summons be dismissed." "The Plaintiff will pay the First Defendant's costs of the proceedings on the party/party basis up to and including 15 November 2005 and thereafter on the indemnity basis." 'The exhibits may be returned.' 'There will be a stay of the judgment for a period of seven days from...