Great Wall Resources Pty Ltd v O'Sullivan & Anor (No 2) [2009] NSWCA 184

Great Wall Resources Pty Ltd v O'Sullivan & Anor (No 2) [2009] NSWCA 184

The respondents' offer to accept $60,000 plus party-party costs in full satisfaction of a judgment for $101,914.74 inclusive of interest involved a significant compromise. Given the substantial obstacles to the appellant's success, including the need to obtain leave to appeal, the appellant knew or should have known that the offer was favourable and acted unreasonably in not accepting it. Indemnity costs were therefore ordered from the day after the offer lapsed, 8 September 2008, with earlier costs on a party and party basis.

Jurisdiction
Australia
Judgment Date
09 July 2009
Procedural Posture
Consequential Orders; Costs Application for Indemnity Costs and Payment Out of Money Paid Into Court / Respondents' Notice of Motion Filed 18 June 2009 After Judgment Delivered on 4 June 2009 Dismissing the Appeal, the Appellant's Notice of Motion and the Appellant's Application for Leave to Appeal
Outcome
Respondents' Notice of Motion granted; payment out ordered and costs ordered on a party and party basis up to and including 8 September 2008 and thereafter on an indemnity basis.
Legal Topics
['indemnity Costs' 'calderbank Offer' 'payment Out of Court' 'leave to Appeal']
['civil Procedure' 'costs'] ['indemnity Costs' 'calderbank Offer' 'payment Out of Court' 'leave to Appeal']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Consequential Orders; Costs Application for Indemnity Costs and Payment Out of Money Paid Into Court / Respondents' Notice of Motion Filed 18 June 2009 After Judgment Delivered on 4 June 2009 Dismissing the Appeal, the Appellant's Notice of Motion and the Appellant's Application for Leave to Appeal

Legal Issues

  1. 1 ["Whether the appellant should pay the respondents' costs on an indemnity basis because it failed to accept the respondents' Calderbank offer." 'Whether money paid into Court by the appellant should be paid out to the respondents.']

Ratio Decidendi

The respondents' offer to accept $60,000 plus party-party costs in full satisfaction of a judgment for $101,914.74 inclusive of interest involved a significant compromise. Given the substantial obstacles to the appellant's success, including the need to obtain leave to appeal, the appellant knew or should have known that the offer was favourable and acted unreasonably in not accepting it. Indemnity costs were therefore ordered from the day after the offer lapsed, 8 September 2008, with earlier costs on a party and party basis.

Court Disposition

Respondents' Notice of Motion granted; payment out ordered and costs ordered on a party and party basis up to and including 8 September 2008 and thereafter on an indemnity basis.

Orders

  • ['Order that the money paid into court by the appellant on 23 October 2008 be paid out to the respondents on account of the damages to which they are entitled by reason of the decision of McLaughlin AsJ of 19 May 2008.' 'Order that the costs ordered by this Court on 4 June 2009 to be paid by the appellant to the...