Midland Metals Overseas v Australian Cablemakers Association (No 2) [2018] NSWSC 1128

Midland Metals Overseas v Australian Cablemakers Association (No 2) [2018] NSWSC 1128

The second Calderbank offer constituted a real and genuine compromise by offering significant non-monetary relief and vacation of prior costs orders. Midland's rejection of this offer was unreasonable, as it provided a substantial proportion of the relief sought and proceeding to trial over the remainder was disproportionate. Indemnity costs are therefore ordered from the date of rejection of the second offer.

Jurisdiction
Australia
Judgment Date
20 July 2018
Procedural Posture
Equity Commercial List / Costs Application Following Substantive Dismissal
Outcome
Costs assessed on the ordinary basis up to 23 November 2017 and on the indemnity basis thereafter.
Legal Topics
['indemnity Costs' 'calderbank Offers' 'cost Assessments' 'settlement Offers']
['costs'] ['indemnity Costs' 'calderbank Offers' 'cost Assessments' 'settlement Offers']

Case Brief

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Procedural Posture

Equity Commercial List / Costs Application Following Substantive Dismissal

Legal Issues

  1. 1 ['Whether indemnity costs should be ordered from the date of rejection of the Calderbank offers' 'Whether the offers involved a real and genuine compromise' "Whether the plaintiff's rejection of the offers was unreasonable"]

Ratio Decidendi

The second Calderbank offer constituted a real and genuine compromise by offering significant non-monetary relief and vacation of prior costs orders. Midland's rejection of this offer was unreasonable, as it provided a substantial proportion of the relief sought and proceeding to trial over the remainder was disproportionate. Indemnity costs are therefore ordered from the date of rejection of the second offer.

Court Disposition

Costs assessed on the ordinary basis up to 23 November 2017 and on the indemnity basis thereafter.

Orders

  • ['Order that the costs payable pursuant to order 2 made on 21 June 2018 be assessed on the ordinary basis up until 23 November 2017 and on the indemnity basis thereafter.']