McVicar v Hanson Construction Materials Pty Ltd (No.2) [2024] NSWSC 606

McVicar v Hanson Construction Materials Pty Ltd (No.2) [2024] NSWSC 606

The plaintiff's refusal to accept a genuine Calderbank offer that was more favourable than the outcome, combined with pursuing a hopeless case and the absence of any explanation for delay, made it unreasonable for the defendant to bear costs; thus, indemnity costs from the date of the offer were appropriate.

Jurisdiction
Australia
Judgment Date
22 May 2024
Procedural Posture
Costs Application After Dismissal of Appeal / Post Judgment, Costs Order
Outcome
Plaintiff to pay the defendant's costs on an indemnity basis from 21 September 2023.
Legal Topics
['indemnity Costs' 'calderbank Offers' 'appeal From Local Court' 'leave to Appeal Out of Time']
['civil Procedure' 'costs'] ['indemnity Costs' 'calderbank Offers' 'appeal From Local Court' 'leave to Appeal Out of Time']

Case Brief

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Procedural Posture

Costs Application After Dismissal of Appeal / Post Judgment, Costs Order

Legal Issues

  1. 1 ['Whether costs should be awarded on an indemnity basis following a rejected Calderbank offer more favourable than the judgment' 'Whether the conduct of the plaintiff justified indemnity costs']

Ratio Decidendi

The plaintiff's refusal to accept a genuine Calderbank offer that was more favourable than the outcome, combined with pursuing a hopeless case and the absence of any explanation for delay, made it unreasonable for the defendant to bear costs; thus, indemnity costs from the date of the offer were appropriate.

Court Disposition

Plaintiff to pay the defendant's costs on an indemnity basis from 21 September 2023.

Orders

  • ["Order 2 of the Court's orders of 27 February 2024 varied to read: 'Plaintiff to pay the defendant's costs on an indemnity basis from 21 September 2023.'"]