Darzi Group Pty Ltd v Nolde Pty Ltd (No 3) [2022] NSWSC 645

Darzi Group Pty Ltd v Nolde Pty Ltd (No 3) [2022] NSWSC 645

Nolde's failure to accept Darzi's Calderbank offer was unreasonable in relation to the issues concerning events before 30 November 2019: the 14 day period was sufficient in the context of the prior Court of Appeal orders and ongoing lease dispute; Darzi's offer to forgo its costs was a genuine compromise in circumstances where there was no practical compromise available other than costs; and Nolde did not establish that the offer could not practically be accepted. However, later disputes concerning alleged breaches of the lease by Darzi after 30 November 2019 were not the subject of the Calderbank offer and should attract only ordinary costs. Darzi was also entitled to interest on costs...

Jurisdiction
Australia
Judgment Date
23 May 2022
Procedural Posture
Costs Application in Equity Proceedings / On the Papers After Principal Judgment
Outcome
Costs determined in principle: Nolde to pay Darzi's costs on the ordinary basis for specified periods and issues, on the indemnity basis for other post-5 November 2019 issues, and interest on costs from invoice payment dates; parties were given 14 days to make submissions on the proposed form of orders.
Legal Topics
['party/party Costs' 'indemnity Costs' 'calderbank Offers' 'offers of Compromise' 'interest on Costs' 'specific Performance of Lease Agreement']
['civil Procedure' 'costs' 'equity' 'leases'] ['party/party Costs' 'indemnity Costs' 'calderbank Offers' 'offers of Compromise' 'interest on Costs' 'specific Performance of Lease Agreement']

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Procedural Posture

Costs Application in Equity Proceedings / On the Papers After Principal Judgment

Legal Issues

  1. 1 ["Whether Nolde's failure to accept Darzi's Calderbank offer justified an indemnity costs order after 5 November 2019." 'Whether the 14 day period for acceptance of the Calderbank offer was reasonable.' "Whether Darzi's offer was a genuine compromise rather than an invitation to capitulate." 'Whether the offer was capable of acceptance within the period it was open.' 'Whether subsequent disputes arising after service of the Calderbank offer should be treated separately for costs purposes.' 'Whether interest on costs should run from the dates Darzi paid its legal invoices.']

Ratio Decidendi

Nolde's failure to accept Darzi's Calderbank offer was unreasonable in relation to the issues concerning events before 30 November 2019: the 14 day period was sufficient in the context of the prior Court of Appeal orders and ongoing lease dispute; Darzi's offer to forgo its costs was a genuine compromise in circumstances where there was no practical compromise available other than costs; and Nolde did not establish that the offer could not practically be accepted. However, later disputes concerning alleged breaches of the lease by Darzi after 30 November 2019 were not the subject of the Calderbank offer and should attract only ordinary costs. Darzi was also entitled to interest on costs...

Court Disposition

Costs determined in principle: Nolde to pay Darzi's costs on the ordinary basis for specified periods and issues, on the indemnity basis for other post-5 November 2019 issues, and interest on costs from invoice payment dates; parties were given 14 days to make submissions on the proposed form of orders.

Orders

  • ["Order the defendant to pay the plaintiff's costs of the proceedings incurred up to 5 November 2019 on the ordinary basis." "Order the defendant to pay the plaintiff's costs of the proceedings incurred after 5 November 2019 in respect of the alleged breaches by the plaintiff of the lease occurring after 30 November...