C&V Engineering Pty Ltd v Hamilton & Marino Builders Pty Ltd [2019] NSWDC 323

C&V Engineering Pty Ltd v Hamilton & Marino Builders Pty Ltd [2019] NSWDC 323

The defendant's 2 October 2018 offer of $21,648.00 was a genuine offer to resolve the proceedings, made after the plaintiff knew the pleaded case, and was better than the result the plaintiff achieved. Although the email did not itself specify an acceptance period or expressly state that it would be relied on for indemnity costs, its annexures conveyed those consequences and a reasonable acceptance period was 28 days. It was unreasonable for the plaintiff to reject that offer, so the defendant was entitled to indemnity costs after 30 October 2018, with ordinary costs before then.

Jurisdiction
Australia
Judgment Date
12 July 2019
Procedural Posture
Civil Costs Application Following Dismissal of Plaintiff's Damages Claim / Post Judgment Determination of Costs
Outcome
Order 2 made 3 June 2019 was varied so that the plaintiff pay the defendant's costs on the normal basis up to and including 30 October 2018 and thereafter on an indemnity basis; exhibits were ordered to be returned.
Legal Topics
['indemnity Costs' 'offers of Compromise' 'calderbank Offers' 'costs Following the Event' 'loss of Bargain Damages']
['civil Procedure' 'costs' 'contract'] ['indemnity Costs' 'offers of Compromise' 'calderbank Offers' 'costs Following the Event' 'loss of Bargain Damages']

Case Brief

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Procedural Posture

Civil Costs Application Following Dismissal of Plaintiff's Damages Claim / Post Judgment Determination of Costs

Legal Issues

  1. 1 ['Whether the defendant was entitled to indemnity costs because the plaintiff rejected offers to compromise that were more favourable than the result achieved at judgment.' "Whether the defendant's communications constituted genuine offers of compromise sufficient to justify a special costs order." 'From what date indemnity costs should run if a special costs order was justified.']

Ratio Decidendi

The defendant's 2 October 2018 offer of $21,648.00 was a genuine offer to resolve the proceedings, made after the plaintiff knew the pleaded case, and was better than the result the plaintiff achieved. Although the email did not itself specify an acceptance period or expressly state that it would be relied on for indemnity costs, its annexures conveyed those consequences and a reasonable acceptance period was 28 days. It was unreasonable for the plaintiff to reject that offer, so the defendant was entitled to indemnity costs after 30 October 2018, with ordinary costs before then.

Court Disposition

Order 2 made 3 June 2019 was varied so that the plaintiff pay the defendant's costs on the normal basis up to and including 30 October 2018 and thereafter on an indemnity basis; exhibits were ordered to be returned.

Orders

  • ['Order 2 made 3 June 2019 be varied as follows: "Plaintiff to pay the defendant\'s cost of the proceedings on the normal basis up to and including 30 October 2018, and thereafter on an indemnity basis";' 'I order the exhibits be returned.']