Drummond v Gordian Runoff Ltd (No 2) [2023] NSWSC 731

Drummond v Gordian Runoff Ltd (No 2) [2023] NSWSC 731

Indemnity costs were appropriate from the date of the offer of compromise as it involved a reasonable compromise (insurer forgoing costs) in a claim that was unlikely to succeed and all legal issues had been ventilated; however, rejection of the earlier Calderbank offer was not unreasonable given plaintiffs’ lack of awareness of key judicial decisions at the time and complexity of issues.

Jurisdiction
Australia
Judgment Date
03 July 2023
Procedural Posture
Equity Technology and Construction List / Post Judgment (costs Order Following Primary Judgment)
Outcome
Plaintiffs to pay defendant's costs: on ordinary basis until 20 July 2022; indemnity basis thereafter (except for reply submissions dated 26 June 2023); no interest on costs.
Legal Topics
['indemnity Costs' 'calderbank Offer' 'offer of Compromise' 'insurance Law' 'statutory Construction']
['costs'] ['indemnity Costs' 'calderbank Offer' 'offer of Compromise' 'insurance Law' 'statutory Construction']

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Procedural Posture

Equity Technology and Construction List / Post Judgment (costs Order Following Primary Judgment)

Legal Issues

  1. 1 ['Entitlement to indemnity costs following rejection of Calderbank offer' 'Whether offer of compromise warrants indemnity costs' 'Application of section 54 of Insurance Contracts Act to section 103BB of Home Building Act' 'Effect of previous NCAT and District Court decisions on tribunal proceedings']

Ratio Decidendi

Indemnity costs were appropriate from the date of the offer of compromise as it involved a reasonable compromise (insurer forgoing costs) in a claim that was unlikely to succeed and all legal issues had been ventilated; however, rejection of the earlier Calderbank offer was not unreasonable given plaintiffs’ lack of awareness of key judicial decisions at the time and complexity of issues.

Court Disposition

Plaintiffs to pay defendant's costs: on ordinary basis until 20 July 2022; indemnity basis thereafter (except for reply submissions dated 26 June 2023); no interest on costs.

Orders

  • ["Vary Order 2 made on 9 June 2023 such that the plaintiffs are to pay the defendant's costs on the ordinary basis until 20 July 2022." "Plaintiffs to pay defendant's costs on an indemnity basis thereafter, save and except for costs of the defendant's reply submissions dated 26 June 2023." 'No order for interest on...