F & D Normoyle Pty Ltd v Transfield Pty Ltd t/as Transfield Bouygues Joint Venture & 1 Or; Transfield Pty Ltd t/as Transfield Bouygues Joint Venture & 1 Or v Z Vranjkovic & 2 Ors [2005] NSWCA 360

F & D Normoyle Pty Ltd v Transfield Pty Ltd t/as Transfield Bouygues Joint Venture & 1 Or; Transfield Pty Ltd t/as Transfield Bouygues Joint Venture & 1 Or v Z Vranjkovic & 2 Ors [2005] NSWCA 360

The Court awarded costs to Mr Vranjkovic on the party and party basis until the date of his genuine offer of compromise and indemnity basis thereafter, due to compliance with the applicable rules and absence of opposition. Normoyle’s late offer did not justify indemnity costs due to its timing, lack of real compromise, and short acceptance period, so the usual costs order was appropriate.

Parties
Appellant: F & D Normoyle Pty Ltd; First Respondent (ca 40679/04), First Appellant (ca 40682/04): Transfield Pty Ltd t/as Transfield Bouygues Joint Venture; Second Respondent (ca 40679/04), Second Appellant (ca 40682/04): Bouygues SA t/as Transfield Bouygues Joint Venture; First Respondent (ca 40682/04): Zarko Vranjkovic; Second Respondent (ca 40682/04): Chadwick Building Systems Pty Ltd; Third Respondent (ca 40682/04): F & D Normoyle Pty Ltd
Jurisdiction
Australia
Judgment Date
24 October 2005
Procedural Posture
Civil Appeal / Costs Determination After Appeal Judgment
Outcome
Costs orders made as per reasons: costs assessed party/party until 10 February 2005 and indemnity thereafter for Mr Vranjkovic; Normoyle’s appeal costs orders to be entered as pronounced on 23 August 2005.
Legal Topics
Costs, Offers of Compromise, Indemnity Costs, Party/party Costs
Civil Procedure Costs Offers of Compromise Indemnity Costs Party/party Costs

Case Brief

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Parties

F & D Normoyle Pty Ltd

Appellant

Transfield Pty Ltd t/as Transfield Bouygues Joint Venture

First Respondent (ca 40679/04), First Appellant (ca 40682/04)

Bouygues SA t/as Transfield Bouygues Joint Venture

Second Respondent (ca 40679/04), Second Appellant (ca 40682/04)

Zarko Vranjkovic

First Respondent (ca 40682/04)

Chadwick Building Systems Pty Ltd

Second Respondent (ca 40682/04)

F & D Normoyle Pty Ltd

Third Respondent (ca 40682/04)

Procedural Posture

Civil Appeal / Costs Determination After Appeal Judgment

Legal Issues

  1. 1 Whether indemnity costs should be awarded following a Calderbank offer or an offer of compromise
  2. 2 Basis on which costs should be assessed following judgment on appeal

Ratio Decidendi

The Court awarded costs to Mr Vranjkovic on the party and party basis until the date of his genuine offer of compromise and indemnity basis thereafter, due to compliance with the applicable rules and absence of opposition. Normoyle’s late offer did not justify indemnity costs due to its timing, lack of real compromise, and short acceptance period, so the usual costs order was appropriate.

Court Disposition

Costs orders made as per reasons: costs assessed party/party until 10 February 2005 and indemnity thereafter for Mr Vranjkovic; Normoyle’s appeal costs orders to be entered as pronounced on 23 August 2005.

Orders

  • Direct that the costs orders pronounced on 23 August 2005 in CA 40679/04 be entered.
  • Direct that costs payable to Mr Vranjkovic in CA 40682/04 be assessed on the party and party basis up to 10 February 2005 and on the indemnity basis thereafter.