Burn v Short and Short Management Pty Ltd (in liquidation) [2013] NSWLC 15

Burn v Short and Short Management Pty Ltd (in liquidation) [2013] NSWLC 15

Mr Short was successful against Mr Burn and was prima facie entitled to costs, but the offer of compromise was non-compliant because it dealt with costs, and rejection of the Calderbank offers was not unreasonable given the late change in the case and uncertainty about ownership of the goods. It was reasonable and proper for Mr Burn to continue against Mr Short, and the company's inaccurate ASIC form and surrounding circumstances made it fair to order the second defendant to pay the first defendant's costs by a Sanderson order rather than requiring Mr Burn to pay them.

Jurisdiction
Australia
Judgment Date
20 September 2013
Procedural Posture
Civil Costs Determination / Written Submissions After Substantive Judgment Delivered on 5 July 2013
Outcome
Costs finding for the first defendant against the second defendant; indemnity costs refused; Sanderson order made.
Legal Topics
['indemnity Costs' 'calderbank Letters' 'offers of Compromise' 'bullock Orders' 'sanderson Orders' 'costs Apportionment']
['civil Procedure' 'costs'] ['indemnity Costs' 'calderbank Letters' 'offers of Compromise' 'bullock Orders' 'sanderson Orders' 'costs Apportionment']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Civil Costs Determination / Written Submissions After Substantive Judgment Delivered on 5 July 2013

Legal Issues

  1. 1 ['Whether Mr Short was entitled to costs after successfully defending the claim against him' 'Whether the Calderbank letters or offer of compromise justified indemnity costs' 'Whether the offer of compromise complied with UCPR 20.26' "Whether costs should be apportioned because of Mr Short's alleged improper conduct" "Whether the second defendant should pay the first defendant's costs by way of a Bullock or Sanderson order"]

Ratio Decidendi

Mr Short was successful against Mr Burn and was prima facie entitled to costs, but the offer of compromise was non-compliant because it dealt with costs, and rejection of the Calderbank offers was not unreasonable given the late change in the case and uncertainty about ownership of the goods. It was reasonable and proper for Mr Burn to continue against Mr Short, and the company's inaccurate ASIC form and surrounding circumstances made it fair to order the second defendant to pay the first defendant's costs by a Sanderson order rather than requiring Mr Burn to pay them.

Court Disposition

Costs finding for the first defendant against the second defendant; indemnity costs refused; Sanderson order made.

Orders

  • ["The second defendant is to pay the first defendant's costs, as agreed or assessed." 'The registrar is to provide a copy of this decision to the liquidator of Short Management Pty Ltd, Mr Nigel Markey of Pilot Partners, Level 10, 1 Eagle Street Brisbane QLD 4000.']