Core Building Group Pty Ltd v Devoy [2022] FCA 1407

Core Building Group Pty Ltd v Devoy [2022] FCA 1407

The respondents' failure to accept the 20 April 2021 Offer was not so unreasonable as to warrant a costs order or indemnity costs, because no compliant offer of compromise was served, the offer was open for a short period before evidence was complete, and the compromise was modest. However, the respondents' consent to the 29 April 2022 order amounted to capitulation on all issues other than assessment of damages after those issues had been contested since the Defence. Their later consent to judgment for $170,000 was a compromise on damages, not capitulation. The proper exercise of the costs discretion was therefore to order the respondents to pay the applicant's costs only insofar as they...

Jurisdiction
Australia
Judgment Date
28 November 2022
Procedural Posture
Costs in a Commercial and Corporations Proceeding / Question of Costs After the Proceeding Settled Save as to Costs and Judgment Was Entered by Consent; Determined on the Papers
Outcome
Respondents ordered to pay the applicant's costs of the proceeding insofar as those costs relate to issues other than the assessment of damages.
Legal Topics
['costs Where Proceeding Resolved Without Final Hearing' 'offer of Compromise' 'calderbank Offer' 'unreasonable Conduct' 'capitulation' 'assessment of Damages']
['costs' 'commercial and Corporations' 'commercial Contracts, Banking, Finance and Insurance'] ['costs Where Proceeding Resolved Without Final Hearing' 'offer of Compromise' 'calderbank Offer' 'unreasonable Conduct' 'capitulation' 'assessment of Damages']

Case Brief

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Procedural Posture

Costs in a Commercial and Corporations Proceeding / Question of Costs After the Proceeding Settled Save as to Costs and Judgment Was Entered by Consent; Determined on the Papers

Legal Issues

  1. 1 ['Whether a costs order should be made where the proceeding resolved without a final hearing and there was no determination of the merits.' 'Whether the respondents acted unreasonably by not accepting the 20 April 2021 Offer.' "Whether the respondents' conduct amounted to capitulation justifying a costs order." 'Whether the applicant was entitled to indemnity costs under r 25.14(3) of the Federal Court Rules 2011 (Cth) or on Calderbank principles.']

Ratio Decidendi

The respondents' failure to accept the 20 April 2021 Offer was not so unreasonable as to warrant a costs order or indemnity costs, because no compliant offer of compromise was served, the offer was open for a short period before evidence was complete, and the compromise was modest. However, the respondents' consent to the 29 April 2022 order amounted to capitulation on all issues other than assessment of damages after those issues had been contested since the Defence. Their later consent to judgment for $170,000 was a compromise on damages, not capitulation. The proper exercise of the costs discretion was therefore to order the respondents to pay the applicant's costs only insofar as they...

Court Disposition

Respondents ordered to pay the applicant's costs of the proceeding insofar as those costs relate to issues other than the assessment of damages.

Orders

  • ["The respondents are to pay the applicant's costs of the proceeding in so far as those costs relate to issues other than the assessment of damages."]