Forte Sydney Construction Pty Ltd v N Moit & Sons (NSW) Pty Ltd (No. 2) [2022] NSWDC 57

Forte Sydney Construction Pty Ltd v N Moit & Sons (NSW) Pty Ltd (No. 2) [2022] NSWDC 57

The plaintiff's refusal to accept the defendant's Calderbank offer was unreasonable given the compromise offered, evidence available, timing of the offer, the clarity of its terms, and its foreshadowing of indemnity costs. Therefore, costs are to be assessed on an ordinary basis up to and including 13 September 2021...

Source-derived case information.

Parties
Plaintiff: Forte Sydney Construction Pty Ltd; Defendant: N Moit & Sons (NSW) Pty Ltd
Jurisdiction
Australia
Judgment Date
15 March 2022
Procedural Posture
Civil / Post Judgment Costs Application
Outcome
Application for indemnity costs granted in defendant's favour.
Legal Topics
Costs, Calderbank Offer, Indemnity Costs, Offer of Compromise
Civil Procedure Costs Calderbank Offer Indemnity Costs Offer of Compromise

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Parties

Forte Sydney Construction Pty Ltd

Plaintiff

N Moit & Sons (NSW) Pty Ltd

Defendant

Procedural Posture

Civil / Post Judgment Costs Application

Legal Issues

  1. 1 Whether indemnity costs should be awarded to the defendant following a Calderbank offer that was not accepted by the plaintiff.
  2. 2 From what date indemnity costs should run, following the defendant's Calderbank offer.

Ratio Decidendi

The plaintiff's refusal to accept the defendant's Calderbank offer was unreasonable given the compromise offered, evidence available, timing of the offer, the clarity of its terms, and its foreshadowing of indemnity costs. Therefore, costs are to be assessed on an ordinary basis up to and including 13 September 2021 and on an indemnity basis after that date.

Court Disposition

Application for indemnity costs granted in defendant's favour.

Orders

  • Order that the costs payable by the plaintiff to the defendant are to be assessed on an ordinary basis up to and including 13 September 2021 and on an indemnity basis after that date.
  • Order that the costs of this application for indemnity costs be paid by the plaintiff to the defendant on an indemnity basis.