CCL Secure Pty Ltd v Berry (No 2) [2019] FCAFC 92

CCL Secure Pty Ltd v Berry (No 2) [2019] FCAFC 92

The primary judge's costs order should remain undisturbed because Securency's settlement letter was not an orthodox Calderbank offer and required resolution of a separate Nigerian proceeding, while the respondents obtained an undisturbed declaration vindicating liability. For the appeal, Securency achieved significant overall success on damages but failed on liability and pursued an unnecessarily complex and partly unsuccessful appeal, so the respondents should pay 25% of Securency's appeal costs. The damages order should be framed as a judgment for $1,780,858 taking effect from 17 August 2018, not as a mandatory order to pay.

Jurisdiction
Australia
Judgment Date
04 June 2019
Procedural Posture
Appeal / Full Court Determination on the Papers of Outstanding Costs Issues and Form of Damages Order After Principal Judgment
Outcome
Appeal costs and replacement damages order determined; primary judge's costs order left undisturbed; respondents ordered to pay 25% of appellant's costs of the appeal.
Legal Topics
['costs of Appeal' 'calderbank Offer' 'offer of Compromise' 'overarching Purpose' 'form of Money Judgment' 'statutory Compensation']
['costs' 'civil Procedure' 'commercial and Corporations'] ['costs of Appeal' 'calderbank Offer' 'offer of Compromise' 'overarching Purpose' 'form of Money Judgment' 'statutory Compensation']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal / Full Court Determination on the Papers of Outstanding Costs Issues and Form of Damages Order After Principal Judgment

Legal Issues

  1. 1 ['Whether the costs order made by the primary judge in the proceeding below should be disturbed.' 'What costs order should be made in relation to the appeal proceeding.' "What form of order should be made in lieu of Order 2 made by the primary judge on 17 August 2018 to reflect the Full Court's reasons."]

Ratio Decidendi

The primary judge's costs order should remain undisturbed because Securency's settlement letter was not an orthodox Calderbank offer and required resolution of a separate Nigerian proceeding, while the respondents obtained an undisturbed declaration vindicating liability. For the appeal, Securency achieved significant overall success on damages but failed on liability and pursued an unnecessarily complex and partly unsuccessful appeal, so the respondents should pay 25% of Securency's appeal costs. The damages order should be framed as a judgment for $1,780,858 taking effect from 17 August 2018, not as a mandatory order to pay.

Court Disposition

Appeal costs and replacement damages order determined; primary judge's costs order left undisturbed; respondents ordered to pay 25% of appellant's costs of the appeal.

Orders

  • ['In place of Order 2 made by the primary judge on 17 August 2018, there be judgment for the applicants below against the respondent below in the sum of $1,780,858, with such judgment to take effect from 17 August 2018.' "The respondents pay 25% of the appellant's costs of the appeal as agreed or taxed."]