CBS Commercial Canberra Pty Ltd v AXIS Commercial (ACT) Pty Ltd, in the matter of CBS Commercial Canberra Pty Ltd (No 2) [2022] FCA 687

CBS Commercial Canberra Pty Ltd v AXIS Commercial (ACT) Pty Ltd, in the matter of CBS Commercial Canberra Pty Ltd (No 2) [2022] FCA 687

After the plaintiff served submissions on 8 March 2022 drawing the defendant's attention to Re J Group Constructions Pty Ltd, the defendant should have appreciated that its only basis for resisting reliance on the offsetting claims was unlikely to succeed and that the plaintiff had a very high probability of establishing genuine offsetting claims exceeding the statutory demand debt. The defendant's decision to persist from that point constituted a relevant delinquency or special or unusual feature justifying indemnity costs from 8 March 2022, but the earlier solicitor letters did not identify that ground or probability of success sufficiently to justify indemnity costs from an earlier date.

Jurisdiction
Australia
Judgment Date
14 June 2022
Procedural Posture
Costs Application in Proceeding to Set Aside a Statutory Demand / Costs Determined After Substantive Judgment
Outcome
The defendant was ordered to pay the plaintiff's costs on the ordinary basis up to and including 8 March 2022 and thereafter on an indemnity basis, as taxed or agreed.
Legal Topics
['statutory Demand' 'offsetting Claim' 'indemnity Costs' 'ordinary Basis Costs' 'building and Construction Security of Payment Adjudication Debt']
['corporations' 'corporate Insolvency' 'costs'] ['statutory Demand' 'offsetting Claim' 'indemnity Costs' 'ordinary Basis Costs' 'building and Construction Security of Payment Adjudication Debt']

Case Brief

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Procedural Posture

Costs Application in Proceeding to Set Aside a Statutory Demand / Costs Determined After Substantive Judgment

Legal Issues

  1. 1 ["Whether the defendant should pay the plaintiff's costs on an indemnity basis or on the ordinary basis." "Whether the defendant's persistence in defending the application after the plaintiff's submissions drew attention to Re J Group Constructions Pty Ltd constituted a relevant delinquency or special or unusual feature justifying indemnity costs." "Whether the plaintiff's solicitors' letters justified an award of indemnity costs from an earlier date."]

Ratio Decidendi

After the plaintiff served submissions on 8 March 2022 drawing the defendant's attention to Re J Group Constructions Pty Ltd, the defendant should have appreciated that its only basis for resisting reliance on the offsetting claims was unlikely to succeed and that the plaintiff had a very high probability of establishing genuine offsetting claims exceeding the statutory demand debt. The defendant's decision to persist from that point constituted a relevant delinquency or special or unusual feature justifying indemnity costs from 8 March 2022, but the earlier solicitor letters did not identify that ground or probability of success sufficiently to justify indemnity costs from an earlier date.

Court Disposition

The defendant was ordered to pay the plaintiff's costs on the ordinary basis up to and including 8 March 2022 and thereafter on an indemnity basis, as taxed or agreed.

Orders

  • ["The defendant is to pay the plaintiff's costs of the proceedings on the ordinary basis up to and including 8 March 2022 and thereafter on an indemnity basis, as taxed or agreed."]