Benson v Rational Entertainment Enterprises Ltd (No 2) [2018] NSWCA 148

Benson v Rational Entertainment Enterprises Ltd (No 2) [2018] NSWCA 148

The offer of compromise and Calderbank letter did not affect the costs discretion because each was capable of acceptance only by all four respondents and would have allowed execution against respondents against whom Mr Benson had no right to judgment. The proceedings were properly commenced in the Supreme Court because the respondents were incorporated in the Isle of Man and District Court process could not be served outside Australia, and their continuation in the Supreme Court was warranted by the legal and factual complexity, the United States settlement deed and law issues, the novel unjust enrichment claim, and the amount at stake. Because only the fourth respondent was liable, only...

Jurisdiction
Australia
Judgment Date
11 July 2018
Procedural Posture
Costs / Court of Appeal, on the Papers, After Appeal Allowed in Part; Ancillary Judgment and Costs Orders
Outcome
Judgment entered for the appellant against the fourth respondent by consent; costs orders varied so that only the fourth respondent pays the appellant's costs of the appeal and first instance, with no order as to the costs of submissions on the form of the judgment, parties and costs.
Legal Topics
['uniform Civil Procedure Rules 2005, R 42.34' 'calderbank Letter' 'offer of Compromise' 'indemnity Costs' 'supreme Court and District Court Proceedings' 'costs at First Instance and on Appeal']
['costs' 'civil Procedure'] ['uniform Civil Procedure Rules 2005, R 42.34' 'calderbank Letter' 'offer of Compromise' 'indemnity Costs' 'supreme Court and District Court Proceedings' 'costs at First Instance and on Appeal']

Case Brief

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Procedural Posture

Costs / Court of Appeal, on the Papers, After Appeal Allowed in Part; Ancillary Judgment and Costs Orders

Legal Issues

  1. 1 ['Whether the offer of compromise and Calderbank letter affected the exercise of the discretion as to costs.' 'Whether Uniform Civil Procedure Rules 2005, r 42.34 applied because the judgment was for less than $500,000 and whether commencement and continuation of the proceedings in the Supreme Court was warranted.' 'Whether costs at first instance and on appeal should be payable by all respondents or only by the fourth respondent.' 'Whether any order should be made for the costs of submissions on the form of the judgment, parties and costs.']

Ratio Decidendi

The offer of compromise and Calderbank letter did not affect the costs discretion because each was capable of acceptance only by all four respondents and would have allowed execution against respondents against whom Mr Benson had no right to judgment. The proceedings were properly commenced in the Supreme Court because the respondents were incorporated in the Isle of Man and District Court process could not be served outside Australia, and their continuation in the Supreme Court was warranted by the legal and factual complexity, the United States settlement deed and law issues, the novel unjust enrichment claim, and the amount at stake. Because only the fourth respondent was liable, only...

Court Disposition

Judgment entered for the appellant against the fourth respondent by consent; costs orders varied so that only the fourth respondent pays the appellant's costs of the appeal and first instance, with no order as to the costs of submissions on the form of the judgment, parties and costs.

Orders

  • ['Judgment for the Appellant against the Fourth Respondent, Rational FT Enterprises Limited, in the sum of US$382,216.23.' 'The name of the Second Respondent upon all documents filed in these proceedings shall be taken to have been amended to the name "Amaya Group Limited."' 'Vary order 4 made on 25 May 2018 so that...