MM Constructions (Aust) Pty Limited and Anor v Port Stephens Council (No. 7) [2012] NSWSC 250

MM Constructions (Aust) Pty Limited and Anor v Port Stephens Council (No. 7) [2012] NSWSC 250

The first offer on 27 November 2009 and the second Offer of Compromise and Calderbank offer on 1 April 2010 did not justify indemnity costs given the complexity of the proceedings and the factual and legal issues still to be litigated. By 17 August 2010, however, the parties had the evidence to be relied upon at the resumed hearing, the evidentiary and forensic issues were clearly drawn, significant problems existed for the Plaintiffs in establishing liability, and the Defendant's offer that each party bear its own costs involved a real and genuine element of compromise. The Plaintiffs' failure to respond to that offer was unreasonable, so indemnity costs were ordered from 18 August 2010.

Jurisdiction
Australia
Judgment Date
23 March 2012
Procedural Posture
Costs Application / Post Judgment Application by the Defendant to Vary the Costs Order, Determined on Written Submissions
Outcome
Costs order varied in favour of the Defendant.
Legal Topics
['indemnity Costs' 'offers of Compromise' 'calderbank Offer' 'variation of Costs Order' 'genuine Element of Compromise']
['practice and Procedure' 'costs'] ['indemnity Costs' 'offers of Compromise' 'calderbank Offer' 'variation of Costs Order' 'genuine Element of Compromise']

Case Brief

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Procedural Posture

Costs Application / Post Judgment Application by the Defendant to Vary the Costs Order, Determined on Written Submissions

Legal Issues

  1. 1 ["Whether the costs order made on 22 December 2011 should be varied to require the Plaintiffs to pay the Defendant's costs on an indemnity basis from an earlier date." "Whether the Defendant's offers of compromise and Calderbank offer involved a real and genuine element of compromise." "Whether the Plaintiffs acted unreasonably in not accepting or responding to the Defendant's offers."]

Ratio Decidendi

The first offer on 27 November 2009 and the second Offer of Compromise and Calderbank offer on 1 April 2010 did not justify indemnity costs given the complexity of the proceedings and the factual and legal issues still to be litigated. By 17 August 2010, however, the parties had the evidence to be relied upon at the resumed hearing, the evidentiary and forensic issues were clearly drawn, significant problems existed for the Plaintiffs in establishing liability, and the Defendant's offer that each party bear its own costs involved a real and genuine element of compromise. The Plaintiffs' failure to respond to that offer was unreasonable, so indemnity costs were ordered from 18 August 2010.

Court Disposition

Costs order varied in favour of the Defendant.

Orders

  • ['The costs order at [358](b) of the judgment of 22 December 2011 is varied.' "The Plaintiffs are to pay the Defendant's costs of the proceedings in this Court on the ordinary basis up to 17 August 2010." "The Plaintiffs are to pay the Defendant's costs of the proceedings in this Court on an indemnity basis from 18...