Building Partners Pty Ltd v AEA Constructions Pty Ltd [2018] NSWSC 1033

Building Partners Pty Ltd v AEA Constructions Pty Ltd [2018] NSWSC 1033

The defendant's failure to accept the plaintiff's Calderbank offer was unreasonable. The cross-claim had very poor prospects, the plaintiff compromised by agreeing to bear its own costs on that cross-claim, the indemnity offer waived interest that had accrued to approximately $40,000, the defendant's liability case was very strong, the objection based on possible further compensation payments was artificial, and the time allowed for acceptance was reasonable and later extended. This justified indemnity costs from 24 December 2016.

Jurisdiction
Australia
Judgment Date
04 July 2018
Procedural Posture
Costs Application in Proceedings by Employer for Indemnity for Workers Compensation Benefits Paid / On the Papers After Judgment and Costs Orders, Concerning Whether Costs Should Be Assessed on the Indemnity Basis
Outcome
Plaintiff awarded costs on the ordinary basis up to 23 December 2016 and on the indemnity basis from 24 December 2016.
Legal Topics
['indemnity Costs' 'calderbank Offer' 'section 151 Z Indemnity' 'cross Claim for Contribution' 'party/party Costs']
['costs' 'workers Compensation' 'negligence'] ['indemnity Costs' 'calderbank Offer' 'section 151 Z Indemnity' 'cross Claim for Contribution' 'party/party Costs']

Case Brief

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Procedural Posture

Costs Application in Proceedings by Employer for Indemnity for Workers Compensation Benefits Paid / On the Papers After Judgment and Costs Orders, Concerning Whether Costs Should Be Assessed on the Indemnity Basis

Legal Issues

  1. 1 ["Whether the defendant's rejection of the plaintiff's Calderbank offer was unreasonable so as to justify indemnity costs from the date of the offer." 'Whether the terms of paragraph 6 of the Calderbank letter made the offer difficult or unreasonable to accept.' 'Whether the time allowed for acceptance of the offer was reasonable.']

Ratio Decidendi

The defendant's failure to accept the plaintiff's Calderbank offer was unreasonable. The cross-claim had very poor prospects, the plaintiff compromised by agreeing to bear its own costs on that cross-claim, the indemnity offer waived interest that had accrued to approximately $40,000, the defendant's liability case was very strong, the objection based on possible further compensation payments was artificial, and the time allowed for acceptance was reasonable and later extended. This justified indemnity costs from 24 December 2016.

Court Disposition

Plaintiff awarded costs on the ordinary basis up to 23 December 2016 and on the indemnity basis from 24 December 2016.

Orders

  • ["The plaintiff's costs of the proceedings including the cross-claim under the orders of 22 May 2018 are to be paid on the ordinary basis up to 23 December 2016 and on the indemnity basis from 24 December 2016."]