Dyluc Pty Limited v Mally Group Pty Limited & Ors (No. 2) [2013] NSWDC 105

Dyluc Pty Limited v Mally Group Pty Limited & Ors (No. 2) [2013] NSWDC 105

The refusal by the plaintiff to accept the third defendant's offer of compromise dated 18 March 2013, which was open for a reasonable period prior to the trial and complied with procedural rules, was unreasonable given the state of the evidence and the lack of merit in the plaintiff's case. The plaintiff is ordered to pay the third defendant's costs on an ordinary basis up to 18 March 2013 and on an indemnity basis thereafter. Previous offers on 24 July 2012 were not unconditional and not open for a reasonable time, so costs orders based on those offers were not granted. Cross-claims costs are not awarded against the plaintiff, as there was no separate evidence or time taken at trial for...

Jurisdiction
Australia
Judgment Date
16 July 2013
Procedural Posture
Civil / Post Judgment Costs Application
Outcome
Costs orders varied.
Legal Topics
['costs' 'indemnity Costs' 'offers of Compromise' 'calderbank Offers']
['civil Procedure'] ['costs' 'indemnity Costs' 'offers of Compromise' 'calderbank Offers']

Case Brief

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Procedural Posture

Civil / Post Judgment Costs Application

Legal Issues

  1. 1 ['Whether indemnity costs should be awarded based on Calderbank offers and offers of compromise.' 'Whether the plaintiff should be liable for costs of cross-claims between defendants.' 'Appropriate variation of previous costs orders.']

Ratio Decidendi

The refusal by the plaintiff to accept the third defendant's offer of compromise dated 18 March 2013, which was open for a reasonable period prior to the trial and complied with procedural rules, was unreasonable given the state of the evidence and the lack of merit in the plaintiff's case. The plaintiff is ordered to pay the third defendant's costs on an ordinary basis up to 18 March 2013 and on an indemnity basis thereafter. Previous offers on 24 July 2012 were not unconditional and not open for a reasonable time, so costs orders based on those offers were not granted. Cross-claims costs are not awarded against the plaintiff, as there was no separate evidence or time taken at trial for...

Court Disposition

Costs orders varied.

Orders

  • ['Order (2) made 1 May 2013 vacated.' 'The Plaintiff to pay the costs of the first and second defendants on an ordinary basis.' 'The Plaintiff to pay the costs of the third defendant on an ordinary basis up until 18 March 2013, and thereafter on an indemnity basis from 19 March 2013.' "First and second defendants to...