Cushman & Wakefield (NSW) Pty Ltd v Farrell (No 2) [2017] NSWCA 62

Cushman & Wakefield (NSW) Pty Ltd v Farrell (No 2) [2017] NSWCA 62

The rejection of the Calderbank offer by the respondent was not unreasonable; indemnity costs were not warranted for first instance proceedings. However, the appellant's offer of compromise in the appeal proceedings contained a genuine element of compromise and was no less favourable than the outcome; therefore, the appellant is entitled to indemnity costs for 80% of its costs of the appeal from 8 October 2016 onwards. Interest should be paid on judgment sums to be repaid, calculated in accordance with s 100 of the Civil Procedure Act 2005 (NSW) for periods specified.

Jurisdiction
Australia
Judgment Date
29 March 2017
Procedural Posture
Civil Appeal / Costs Orders Following Partial Success of Appeal
Outcome
Appeal partly allowed; costs and interest orders made.
Legal Topics
['costs' 'offers of Compromise' 'calderbank Offers' 'interest on Repayments']
['civil Procedure'] ['costs' 'offers of Compromise' 'calderbank Offers' 'interest on Repayments']

Case Brief

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Procedural Posture

Civil Appeal / Costs Orders Following Partial Success of Appeal

Legal Issues

  1. 1 ['Whether indemnity costs should be ordered following offers of compromise and Calderbank offers' 'Whether interest payable on repayment of judgment sums after successful appeal' 'What proportion of costs should be awarded to the appellant given partial success']

Ratio Decidendi

The rejection of the Calderbank offer by the respondent was not unreasonable; indemnity costs were not warranted for first instance proceedings. However, the appellant's offer of compromise in the appeal proceedings contained a genuine element of compromise and was no less favourable than the outcome; therefore, the appellant is entitled to indemnity costs for 80% of its costs of the appeal from 8 October 2016 onwards. Interest should be paid on judgment sums to be repaid, calculated in accordance with s 100 of the Civil Procedure Act 2005 (NSW) for periods specified.

Court Disposition

Appeal partly allowed; costs and interest orders made.

Orders

  • ["Respondent pay appellant's costs of and incidental to the amended statement of claim on the ordinary basis (excluding costs of the cross-claim in the Court below)." "Respondent pay 80% of appellant's costs of the appeal on the ordinary basis up to and including 7 October 2016 and on the indemnity basis...