Amaca Pty Limited v Seltsam Pty Limited (No. 2) (Re: Donkin) [2018] NSWDDT 3

Amaca Pty Limited v Seltsam Pty Limited (No. 2) (Re: Donkin) [2018] NSWDDT 3

Indemnity costs were refused because, by the expiry of the Calderbank offer, Amaca had served only a limited part of the material later relied on at the hearing, including about 15% of its documentary case by volume, and it could not be said on that material that Seltsam's failure to accept the offer was unreasonable. The s 98(4) application was refused because leave was not required, the type of order sought was unclear, and the specialised costs assessment regime was the appropriate course.

Jurisdiction
Australia
Judgment Date
27 February 2018
Procedural Posture
Costs Determination in a Cross Claim / On the Papers After Judgment on the Cross Claim
Outcome
Amaca's applications for indemnity costs and for an order under s 98(4) were declined; Amaca was ordered to pay Seltsam's costs of the costs determination on the papers.
Legal Topics
['indemnity Costs' 'calderbank Offer' 'genuine Compromise' 'unreasonable Failure to Accept Offer' 's 98(4) Costs Order']
['costs' 'civil Procedure'] ['indemnity Costs' 'calderbank Offer' 'genuine Compromise' 'unreasonable Failure to Accept Offer' 's 98(4) Costs Order']

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Procedural Posture

Costs Determination in a Cross Claim / On the Papers After Judgment on the Cross Claim

Legal Issues

  1. 1 ["Whether Seltsam's failure to accept Amaca's Calderbank offer by the time it expired was unreasonable so as to justify indemnity costs from 5 October 2016 onwards." 'Whether Amaca should be granted an order under s 98(4) of the Civil Procedure Act 2005.']

Ratio Decidendi

Indemnity costs were refused because, by the expiry of the Calderbank offer, Amaca had served only a limited part of the material later relied on at the hearing, including about 15% of its documentary case by volume, and it could not be said on that material that Seltsam's failure to accept the offer was unreasonable. The s 98(4) application was refused because leave was not required, the type of order sought was unclear, and the specialised costs assessment regime was the appropriate course.

Court Disposition

Amaca's applications for indemnity costs and for an order under s 98(4) were declined; Amaca was ordered to pay Seltsam's costs of the costs determination on the papers.

Orders

  • ['Decline the application of the cross-claimant for the cross-defendant to pay costs from 5 October 2016 onwards on an indemnity basis.' "Decline the cross-claimant's application for an order under s 98(4) of the Civil Procedure Act 2005." "Order the cross-claimant to pay the cross-defendant's costs of the...