Destri Enterprises Pty Ltd & Ors v Donald James Maxwell (No. 2) [2012] NSWSC 405

It was not unreasonable for the plaintiffs to refuse the defendant's inclusive of costs Calderbank offer, due to ambiguity, lack of clear information and the pre-trial circumstances, and thus indemnity costs are not warranted; costs ordered on the ordinary basis.

Parties: First Plaintiff: Destri Enterprises Pty Ltd; Second Plaintiff: Brian Noonan; Third Plaintiff: Lorraine Noonan; Fourth Plaintiff: David George; Fifth Plaintiff: Joanne George; Sixth Plaintiff: Noel Delforce; Defendant: Donald James Maxwell
Jurisdiction: Australia
Judgment Date: 24 April 2012
Procedural Posture: Civil / Post Trial Costs Determination
Outcome: Indemnity costs not awarded; plaintiffs to pay defendant's costs on ordinary basis.
Legal Topics: Costs, Indemnity Costs, Calderbank Offers

Civil Procedure Costs Indemnity Costs Calderbank Offers

Case Brief

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Parties

Destri Enterprises Pty Ltd

First Plaintiff

Brian Noonan

Second Plaintiff

Lorraine Noonan

Third Plaintiff

David George

Fourth Plaintiff

Joanne George

Fifth Plaintiff

Noel Delforce

Sixth Plaintiff

Donald James Maxwell

Defendant

Procedural Posture

Civil / Post Trial Costs Determination

Legal Issues

1 Whether defendant is entitled to indemnity costs based on a Calderbank offer inclusive of costs
2 Whether plaintiffs were unreasonable in refusing the defendant's offer

Ratio Decidendi

Court Disposition

Indemnity costs not awarded; plaintiffs to pay defendant's costs on ordinary basis.

Orders

Plaintiffs to pay the defendant's costs of the proceedings on the ordinary basis, as agreed or assessed.