Turan Hasan & Inver Kapuraya v Pirasta Pty Ltd [2015] NSWCATCD 2

Turan Hasan & Inver Kapuraya v Pirasta Pty Ltd [2015] NSWCATCD 2

Because proceedings under the Retail Leases Act 1994 were allocated to the Consumer and Commercial Division and the amount claimed was $130,000.00 plus interest, r 38 gave the Tribunal discretion to award costs without special circumstances. Applying the usual principle that the successful party should receive costs, there was no reason to deny the respondent its costs. Indemnity costs were refused because the applicants had at best one business day to consider the Calderbank offer, which was unreasonable, particularly as they were unrepresented, and the offer was not a true compromise of the applicants' claim.

Jurisdiction
Australia
Judgment Date
13 January 2015
Procedural Posture
Costs Application in Consumer and Commercial Division Proceedings / Following Orders Dismissing the Applicants' Case; Heard on the Papers
Outcome
Applicants ordered to pay the respondent's costs; indemnity costs refused.
Legal Topics
['costs Discretion' 'successful Party Costs' 'calderbank Offer' 'indemnity Costs' 'consumer and Commercial Division']
['civil Procedure' 'costs' 'retail Leases'] ['costs Discretion' 'successful Party Costs' 'calderbank Offer' 'indemnity Costs' 'consumer and Commercial Division']

Case Brief

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Procedural Posture

Costs Application in Consumer and Commercial Division Proceedings / Following Orders Dismissing the Applicants' Case; Heard on the Papers

Legal Issues

  1. 1 ['Whether the respondent, as the successful party, should be awarded costs of the proceedings.' "Whether costs incurred after the respondent's Calderbank offer should be paid on an indemnity basis." 'Whether the applicants had a reasonable opportunity to consider the Calderbank offer.']

Ratio Decidendi

Because proceedings under the Retail Leases Act 1994 were allocated to the Consumer and Commercial Division and the amount claimed was $130,000.00 plus interest, r 38 gave the Tribunal discretion to award costs without special circumstances. Applying the usual principle that the successful party should receive costs, there was no reason to deny the respondent its costs. Indemnity costs were refused because the applicants had at best one business day to consider the Calderbank offer, which was unreasonable, particularly as they were unrepresented, and the offer was not a true compromise of the applicants' claim.

Court Disposition

Applicants ordered to pay the respondent's costs; indemnity costs refused.

Orders

  • ["Turan Hasan & Inver Kapuraya must pay Pirasta Pty Ltd's costs of these proceedings, such costs, if not agreed, to be assessed on the basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004."]