Maroubra Pool Café Pty Ltd v Fedele (No 2) [2018] NSWSC 192

Maroubra Pool Café Pty Ltd v Fedele (No 2) [2018] NSWSC 192

The plaintiff achieved an outcome at least as favourable as its Calderbank offer, the offer involved a genuine element of compromise, and it was unreasonable for the defendants not to accept it when the issues were clear and trial costs could have been avoided. The defendants were therefore ordered to pay the plaintiff's costs from 20 October 2017 on the indemnity basis. For the earlier period, although the plaintiff was the successful party overall, its partial failure on issues, particularly the conversion claim, and the defendants' valid point concerning the termination issue justified reducing its recoverable ordinary costs to 50%.

Jurisdiction
Australia
Judgment Date
23 February 2018
Procedural Posture
Costs in a Commercial Lease Matter / Costs Determined on the Papers After Judgment
Outcome
Costs ordered in favour of the plaintiff in part, with indemnity costs from 20 October 2017.
Legal Topics
['calderbank Offer' 'indemnity Costs' 'costs Follow the Event' 'apportionment of Costs' 'commercial Lease Termination']
['civil Procedure' 'costs' 'equity' 'commercial Leasing'] ['calderbank Offer' 'indemnity Costs' 'costs Follow the Event' 'apportionment of Costs' 'commercial Lease Termination']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Costs in a Commercial Lease Matter / Costs Determined on the Papers After Judgment

Legal Issues

  1. 1 ["Whether the defendants unreasonably failed to accept the plaintiff's Calderbank offer made on 20 October 2017." 'Whether the Calderbank offer was ineffective because it referred to matters outside the litigation.' 'Whether indemnity costs should be ordered from 20 October 2017.' "What costs order should be made for the period prior to 20 October 2017 given the plaintiff's partial success and failure on issues."]

Ratio Decidendi

The plaintiff achieved an outcome at least as favourable as its Calderbank offer, the offer involved a genuine element of compromise, and it was unreasonable for the defendants not to accept it when the issues were clear and trial costs could have been avoided. The defendants were therefore ordered to pay the plaintiff's costs from 20 October 2017 on the indemnity basis. For the earlier period, although the plaintiff was the successful party overall, its partial failure on issues, particularly the conversion claim, and the defendants' valid point concerning the termination issue justified reducing its recoverable ordinary costs to 50%.

Court Disposition

Costs ordered in favour of the plaintiff in part, with indemnity costs from 20 October 2017.

Orders

  • ["The defendants pay 50% of the plaintiff's costs up to 19 October 2017 on the ordinary basis." "The defendants pay all of the plaintiff's costs thereafter on the indemnity basis."]