Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344

Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344

The appellant was not entitled to indemnity costs because the respondent's failure to accept the 17 September 2010 offer was not unreasonable. Although the offer implied that each party would bear its own costs and was financially significant in that respect, it required the respondent to capitulate for only a nominal payment, and the respondent had reasonable prospects of success as shown by its success before the primary judge on issues of legal complexity. The offer also did not justify indemnity costs of the appeal because it was a pre-trial informal offer, was not renewed after judgment below, and could reasonably be treated as referring only to the proceedings then on foot rather...

Jurisdiction
Australia
Judgment Date
10 November 2011
Procedural Posture
Costs Motion; Procedural and Other Ruling / Court of Appeal, on the Papers, Motion to Vary Costs Order After Appeal
Outcome
Appellant's motion dismissed with costs.
Legal Topics
['indemnity Costs' 'calderbank Offer' 'offer of Compromise' 'costs of Appeal' 'costs Follow the Event']
['civil Procedure' 'costs'] ['indemnity Costs' 'calderbank Offer' 'offer of Compromise' 'costs of Appeal' 'costs Follow the Event']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Costs Motion; Procedural and Other Ruling / Court of Appeal, on the Papers, Motion to Vary Costs Order After Appeal

Legal Issues

  1. 1 ["Whether the appellant's pre-trial Calderbank offer justified varying the costs order so that costs from 17 September 2010 be assessed on an indemnity basis." "Whether the first respondent acted unreasonably in not accepting the appellant's offer to settle for $1,000 in return for delivery up of the bank guarantee." 'Whether a pre-trial informal settlement offer, not renewed after judgment below, should affect the costs of a successful appeal.']

Ratio Decidendi

The appellant was not entitled to indemnity costs because the respondent's failure to accept the 17 September 2010 offer was not unreasonable. Although the offer implied that each party would bear its own costs and was financially significant in that respect, it required the respondent to capitulate for only a nominal payment, and the respondent had reasonable prospects of success as shown by its success before the primary judge on issues of legal complexity. The offer also did not justify indemnity costs of the appeal because it was a pre-trial informal offer, was not renewed after judgment below, and could reasonably be treated as referring only to the proceedings then on foot rather...

Court Disposition

Appellant's motion dismissed with costs.

Orders

  • ["Dismiss the appellant's motion dated 22 September 2011." "Order the appellant to pay the first respondent's costs of the motion."]