Bell & Berg v Macquarie Bank Limited and Anor [2003] NSWIRComm 21

Bell & Berg v Macquarie Bank Limited and Anor [2003] NSWIRComm 21

No extension of time was necessary because no order imposing the 21-day time limit had been made and the Court was not functus officio as to costs. The applicants rejected Calderbank offers that were more favourable than the result they obtained, made no complaint at the time about the short acceptance period, led no evidence of difficulty in taking advice or giving instructions, and failed entirely in their section 106 claims. In the circumstances, the refusal of the offers was unreasonable and justified party/party costs to 5 July 2001 and indemnity costs thereafter, with execution stayed on the agreed condition concerning the $40,000 held for Mr Berg.

Jurisdiction
Australia
Judgment Date
13 February 2003
Procedural Posture
Application Under Section 106 of the Industrial Relations Act 1996; Judgment on Costs / After the Substantive Applications Were Dismissed and an Appeal Had Been Lodged; Respondents Sought Costs Including Indemnity Costs Based on Calderbank Offers and Applicants Sought a Stay
Outcome
Respondents' costs application granted; stay of execution of the costs order granted subject to payment out of $40,000 to the respondents.
Legal Topics
['calderbank Offers' 'indemnity Costs' 'party/party Costs' 'extension of Time' 'stay of Costs Order' 'section 106 Unfair Contracts']
['industrial Relations' 'costs'] ['calderbank Offers' 'indemnity Costs' 'party/party Costs' 'extension of Time' 'stay of Costs Order' 'section 106 Unfair Contracts']

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

Application Under Section 106 of the Industrial Relations Act 1996; Judgment on Costs / After the Substantive Applications Were Dismissed and an Appeal Had Been Lodged; Respondents Sought Costs Including Indemnity Costs Based on Calderbank Offers and Applicants Sought a Stay

Legal Issues

  1. 1 ['Whether the respondents required an extension of time to seek a costs order after the substantive judgment' 'Whether the Court was functus officio in relation to costs' "Whether the applicants unreasonably refused the respondents' Calderbank offers so as to justify indemnity costs after the offers lapsed" "Whether the respondents' conduct of the defence should affect the discretion to order indemnity costs" 'Whether execution of the costs order should be stayed pending further order of the Court']

Ratio Decidendi

No extension of time was necessary because no order imposing the 21-day time limit had been made and the Court was not functus officio as to costs. The applicants rejected Calderbank offers that were more favourable than the result they obtained, made no complaint at the time about the short acceptance period, led no evidence of difficulty in taking advice or giving instructions, and failed entirely in their section 106 claims. In the circumstances, the refusal of the offers was unreasonable and justified party/party costs to 5 July 2001 and indemnity costs thereafter, with execution stayed on the agreed condition concerning the $40,000 held for Mr Berg.

Court Disposition

Respondents' costs application granted; stay of execution of the costs order granted subject to payment out of $40,000 to the respondents.

Orders

  • ["The applicants are to bear the respondents' costs on a party/party basis up to and including 5 July 2001 and thereafter, on an indemnity basis." 'The execution of this order is stayed, pending further order of the Court, subject to the condition that the sum of $40,000, dealt with in the consent orders made in...