MindChamps Preschool Limited v M & W Zaki Pty Limited ATF the Zaki Group Trust & Ors (No. 2) [2022] NSWSC 1331

MindChamps Preschool Limited v M & W Zaki Pty Limited ATF the Zaki Group Trust & Ors (No. 2) [2022] NSWSC 1331

The offer of compromise and Calderbank offer did not justify indemnity costs because each was properly construed as requiring acceptance by all defendants to settle the whole proceeding, while the plaintiff ultimately obtained judgment only against the first, second and third defendants and failed against the fourth and fifth defendants. The misleading and deceptive conduct claim was a clearly dominant or separable group of issues that substantially increased the evidentiary contest and on which the plaintiff failed, but because the fourth and fifth defendants were principals of the other active defendants, had no separate interests, and were represented jointly, the fairest and simplest...

Jurisdiction
Australia
Judgment Date
30 September 2022
Procedural Posture
Consequential Orders in Equity Proceedings Concerning Costs and Interest / Motions for Special Costs Orders and Consequential Orders Following Principal Judgment
Outcome
Plaintiff's claim against the fourth and fifth defendants dismissed; plaintiff awarded 60% of its costs against the first, second and third defendants; no indemnity costs order; no costs order between the plaintiff and the fourth and fifth defendants; judgment entered for interest of $143,500.28.
Legal Topics
['offer of Compromise' 'calderbank Offer' 'indemnity Costs' 'apportionment of Costs' 'dismissal of Claims Against Successful Defendants' 'interest on Judgment']
['costs' 'civil Procedure' 'contract' 'misleading and Deceptive Conduct'] ['offer of Compromise' 'calderbank Offer' 'indemnity Costs' 'apportionment of Costs' 'dismissal of Claims Against Successful Defendants' 'interest on Judgment']

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

Consequential Orders in Equity Proceedings Concerning Costs and Interest / Motions for Special Costs Orders and Consequential Orders Following Principal Judgment

Legal Issues

  1. 1 ["Whether the plaintiff's offer of compromise dated 13 September 2017 or Calderbank offer dated 29 April 2021 justified an indemnity costs order." 'Whether the judgment obtained against the first, second and third defendants was no less favourable than the offers not accepted by the defendants.' "How costs should reflect the plaintiff's success in contract against the first, second and third defendants and failure on the misleading and deceptive conduct claim against all defendants." 'Whether costs orders should be made in favour of the fourth and fifth defendants after dismissal of the claims against them.' 'What interest should be entered on the deposit ordered to be repaid.']

Ratio Decidendi

The offer of compromise and Calderbank offer did not justify indemnity costs because each was properly construed as requiring acceptance by all defendants to settle the whole proceeding, while the plaintiff ultimately obtained judgment only against the first, second and third defendants and failed against the fourth and fifth defendants. The misleading and deceptive conduct claim was a clearly dominant or separable group of issues that substantially increased the evidentiary contest and on which the plaintiff failed, but because the fourth and fifth defendants were principals of the other active defendants, had no separate interests, and were represented jointly, the fairest and simplest...

Court Disposition

Plaintiff's claim against the fourth and fifth defendants dismissed; plaintiff awarded 60% of its costs against the first, second and third defendants; no indemnity costs order; no costs order between the plaintiff and the fourth and fifth defendants; judgment entered for interest of $143,500.28.

Orders

  • ["Dismiss the plaintiff's claim against the fourth and fifth defendants." "The first, second and third defendants are ordered to pay 60% of the plaintiff's costs of the proceedings, including the parties' costs of the motions for special costs orders." 'No order as to costs between the plaintiff and the fourth and...