PPK Willoughby Pty Ltd v Baird [2022] NSWSC 1656

PPK Willoughby Pty Ltd v Baird [2022] NSWSC 1656

The Court held that the rejection of the second Calderbank offer (16 March 2018) was unreasonable given the plaintiff's prospects of success, the stage of the litigation, and the clarity of the risks, warranting indemnity costs from 13 April 2018. The Court further held that the identified non-parties had sufficient interest and control over the litigation and its funding, and that it was in the interests of justice to make them jointly and severally liable for the defendants' costs due to the structure and conduct surrounding the plaintiff's capacity to meet adverse costs.

Parties
Plaintiff: PPK Willoughby Pty Ltd; Defendants: David Baird and others (2nd to 106th Defendants); Non Party: PPK Group Limited; Non Party: SMN Holdings Pty Ltd; Non Party: Phillip Street Properties Pty Ltd; Non Party: G.R.G. Finance Pty Ltd
Jurisdiction
Australia
Judgment Date
09 December 2022
Procedural Posture
Costs Application (post Judgment) in Civil Proceedings / Post Trial, Determination of Costs and Non Party Liability
Outcome
Plaintiff and specified non-parties ordered to pay defendants' costs; previous costs orders vacated; indemnity costs awarded from 13 April 2018; security for costs to be paid out; interest ordered.
Legal Topics
Costs, Indemnity Costs, Non Party Costs Orders, Offers of Compromise
Civil Procedure Costs Indemnity Costs Non Party Costs Orders Offers of Compromise

Case Brief

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Parties

PPK Willoughby Pty Ltd

Plaintiff

David Baird and others (2nd to 106th Defendants)

Defendants

PPK Group Limited

Non Party

SMN Holdings Pty Ltd

Non Party

Phillip Street Properties Pty Ltd

Non Party

G.R.G. Finance Pty Ltd

Non Party

Procedural Posture

Costs Application (post Judgment) in Civil Proceedings / Post Trial, Determination of Costs and Non Party Liability

Legal Issues

  1. 1 Whether indemnity costs should be awarded from a specified date due to the rejection of a Calderbank offer; whether certain non-parties should be made jointly and severally liable for the costs incurred by the defendants

Ratio Decidendi

The Court held that the rejection of the second Calderbank offer (16 March 2018) was unreasonable given the plaintiff's prospects of success, the stage of the litigation, and the clarity of the risks, warranting indemnity costs from 13 April 2018. The Court further held that the identified non-parties had sufficient interest and control over the litigation and its funding, and that it was in the interests of justice to make them jointly and severally liable for the defendants' costs due to the structure and conduct surrounding the plaintiff's capacity to meet adverse costs.

Court Disposition

Plaintiff and specified non-parties ordered to pay defendants' costs; previous costs orders vacated; indemnity costs awarded from 13 April 2018; security for costs to be paid out; interest ordered.

Orders

  • Vacate the costs orders made on 9 December 2020.
  • Plaintiff to pay defendants' costs on an ordinary basis up to 13 April 2018, and thereafter on an indemnity basis.