Cardno ITC Pty Ltd v 33 York Street Pty Ltd (No 2) [2013] NSWDC 313

Cardno ITC Pty Ltd v 33 York Street Pty Ltd (No 2) [2013] NSWDC 313

The Calderbank offer did not constitute a genuine compromise, and it was not unreasonable for York to reject it given the benefit York would have had to forgo and uncertainties in the offer. Cardno was only partially successful and should pay York’s costs related to the make good costs up to the first day of trial. Cardno is otherwise entitled to its costs of the proceedings. No party is awarded the costs of the submissions on costs.

Parties
Plaintiff/cross Defendant: Cardno ITC Pty Ltd ACN 084 093 050; Defendant/cross Claimant: 33 York Street Pty Ltd ACN 104 386 889
Jurisdiction
Australia
Judgment Date
20 December 2013
Procedural Posture
Civil / Costs Decision After Final Judgment
Outcome
Costs orders made as specified: Plaintiff to pay defendant's costs related to make good claim up to first day of trial; no order as to costs of costs submissions; defendant to pay plaintiff's costs of proceedings subject to previous orders.
Legal Topics
Costs, Calderbank Offer, Indemnity Costs, Reasonableness of Settlement Rejection, Partial Success in Claim
Civil Procedure Costs Calderbank Offer Indemnity Costs Reasonableness of Settlement Rejection Partial Success in Claim

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 2 Authorities cited 4 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Cardno ITC Pty Ltd ACN 084 093 050

Plaintiff/cross Defendant

33 York Street Pty Ltd ACN 104 386 889

Defendant/cross Claimant

Procedural Posture

Civil / Costs Decision After Final Judgment

Legal Issues

  1. 1 Whether Cardno is entitled to indemnity costs based on a Calderbank offer
  2. 2 Whether York's rejection of the Calderbank offer was unreasonable
  3. 3 Whether costs should be apportioned due to partial success on claims

Ratio Decidendi

The Calderbank offer did not constitute a genuine compromise, and it was not unreasonable for York to reject it given the benefit York would have had to forgo and uncertainties in the offer. Cardno was only partially successful and should pay York’s costs related to the make good costs up to the first day of trial. Cardno is otherwise entitled to its costs of the proceedings. No party is awarded the costs of the submissions on costs.

Court Disposition

Costs orders made as specified: Plaintiff to pay defendant's costs related to make good claim up to first day of trial; no order as to costs of costs submissions; defendant to pay plaintiff's costs of proceedings subject to previous orders.

Orders

  • Plaintiff to pay defendant's costs directly related to the defendant's claim for make good costs, up to but not including the first day of the trial.
  • There be no order in respect of the costs of the submissions in respect of costs.