Smiths Specialised Building Services Pty Ltd v Brisull Industries Pty Ltd (No.2) [2021] NSWDC 373

Smiths Specialised Building Services Pty Ltd v Brisull Industries Pty Ltd (No.2) [2021] NSWDC 373

Smiths' application for indemnity costs was refused because Brisull's cross-claim was not shown to be clearly hopeless, and Smiths did not seek summary dismissal despite claiming Brisull's poor prospects. The Calderbank offer was found not to be a genuine compromise but rather a demand for capitulation, as it did not involve Smiths foregoing a substantive component of its potential entitlement or value Brisull's cross-claim. Therefore, costs were awarded on the ordinary basis, not indemnity.

Jurisdiction
Australia
Judgment Date
03 August 2021
Procedural Posture
Civil / Costs Judgment Following Principal Judgment
Outcome
Application for indemnity costs refused; costs awarded on ordinary basis.
Legal Topics
['costs' 'indemnity Costs' 'calderbank Offers']
['civil Procedure'] ['costs' 'indemnity Costs' 'calderbank Offers']

Case Brief

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Procedural Posture

Civil / Costs Judgment Following Principal Judgment

Legal Issues

  1. 1 ['Whether indemnity costs should be awarded to Smiths Specialised Building Services Pty Ltd for the defence of the cross-claim' 'Whether the Calderbank offer constituted a genuine offer of compromise justifying indemnity costs']

Ratio Decidendi

Smiths' application for indemnity costs was refused because Brisull's cross-claim was not shown to be clearly hopeless, and Smiths did not seek summary dismissal despite claiming Brisull's poor prospects. The Calderbank offer was found not to be a genuine compromise but rather a demand for capitulation, as it did not involve Smiths foregoing a substantive component of its potential entitlement or value Brisull's cross-claim. Therefore, costs were awarded on the ordinary basis, not indemnity.

Court Disposition

Application for indemnity costs refused; costs awarded on ordinary basis.

Orders

  • ['Judgment for the plaintiff in the amount of $42,450.72.' "The defendant pay the plaintiff's costs of the plaintiff's claim as agreed or assessed." "The cross-claimant pay the cross-defendant's costs of the cross-claim on the ordinary basis as agreed or assessed." "The plaintiff/cross-defendant is not entitled to...