Trenfield, In the matter of ACN 089 008 668 Pty Ltd (in liq) v JMD Park Pty Ltd (No 2) [2020] FCA 45

Trenfield, In the matter of ACN 089 008 668 Pty Ltd (in liq) v JMD Park Pty Ltd (No 2) [2020] FCA 45

The plaintiffs' offer to settle did not comply with Federal Court rules nor indicate that it would operate as a Calderbank offer if statutory requirements were not met; accordingly, it cannot be considered a Calderbank offer. Costs are awarded to the plaintiffs on the party-party basis; specific costs for adjournments are awarded to the defendant. Lump-sum costs procedure is appropriate under court practice.

Parties
First Plaintiff: Kelly-Anne Trenfield and John Park as Joint and Several Liquidators of ACN 089 008 668 Pty Ltd (in liquidation); Second Plaintiff: ACN 089 008 668 Pty Ltd (in liquidation); Defendant: JMD Park Pty Ltd
Jurisdiction
Australia
Judgment Date
30 January 2020
Procedural Posture
Commercial and Corporations / Post Judgment (costs Orders)
Outcome
Defendant ordered to pay interest and plaintiffs' costs; plaintiffs ordered to pay defendant's costs thrown away by trial adjournments; costs to be assessed via lump-sum procedure.
Legal Topics
Costs, Offers to Settle, Calderbank Offers, Corporate Insolvency
Corporations Law Civil Procedure Costs Offers to Settle Calderbank Offers Corporate Insolvency

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Parties

Kelly-Anne Trenfield and John Park as Joint and Several Liquidators of ACN 089 008 668 Pty Ltd (in liquidation)

First Plaintiff

ACN 089 008 668 Pty Ltd (in liquidation)

Second Plaintiff

JMD Park Pty Ltd

Defendant

Procedural Posture

Commercial and Corporations / Post Judgment (costs Orders)

Legal Issues

  1. 1 Whether an offer purporting to be made under court rules but not satisfying requirements can be considered a 'Calderbank' offer
  2. 2 Whether there was any indication that the letter was to have a secondary operation if it failed to meet legislative requirements
  3. 3 Entitlement to costs orders between parties

Ratio Decidendi

The plaintiffs' offer to settle did not comply with Federal Court rules nor indicate that it would operate as a Calderbank offer if statutory requirements were not met; accordingly, it cannot be considered a Calderbank offer. Costs are awarded to the plaintiffs on the party-party basis; specific costs for adjournments are awarded to the defendant. Lump-sum costs procedure is appropriate under court practice.

Court Disposition

Defendant ordered to pay interest and plaintiffs' costs; plaintiffs ordered to pay defendant's costs thrown away by trial adjournments; costs to be assessed via lump-sum procedure.

Orders

  • The defendant pay to the second plaintiff interest on the amount of the judgment in the sum of $97,365.67 calculated by specified periods.
  • The defendant pay the plaintiffs' costs of the action save as provided for in orders on adjournment costs.