Shape Shopfitters Pty Ltd v Shape Australia Pty Ltd (No 4) [2017] FCA 1277

Shape Shopfitters Pty Ltd v Shape Australia Pty Ltd (No 4) [2017] FCA 1277

While the respondent's Calderbank offer was genuine and substantial, the Court was not satisfied that the applicant's refusal was unreasonable given the complexity and stage of proceedings. Cost orders are thus made on a party/party basis, with lump sum assessment deferred until after the determination of the applicant's appeal.

Parties
Applicant: Shape Shopfitters Pty Ltd; Respondent: Shape Australia Pty Ltd
Jurisdiction
Australia
Judgment Date
31 October 2017
Procedural Posture
Civil Proceeding / Costs Determination After Primary Judgment and Pending Appeal
Outcome
Applicant ordered to pay respondent's costs on a party/party basis, costs to be assessed by lump sum post-appeal.
Legal Topics
Costs, Indemnity Costs, Party/party Costs, Calderbank Offer, Lump Sum Costs
Commercial Law Costs Indemnity Costs Party/party Costs Calderbank Offer Lump Sum Costs

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Parties

Shape Shopfitters Pty Ltd

Applicant

Shape Australia Pty Ltd

Respondent

Procedural Posture

Civil Proceeding / Costs Determination After Primary Judgment and Pending Appeal

Legal Issues

  1. 1 Whether the applicant should pay the respondent's costs on an indemnity or party/party basis
  2. 2 Whether the applicant's refusal of a Calderbank offer was unreasonable under the circumstances
  3. 3 Appropriateness of a lump sum costs order

Ratio Decidendi

While the respondent's Calderbank offer was genuine and substantial, the Court was not satisfied that the applicant's refusal was unreasonable given the complexity and stage of proceedings. Cost orders are thus made on a party/party basis, with lump sum assessment deferred until after the determination of the applicant's appeal.

Court Disposition

Applicant ordered to pay respondent's costs on a party/party basis, costs to be assessed by lump sum post-appeal.

Orders

  • The applicant pay the respondent's costs of the proceeding on a party/party basis.
  • The respondent's costs are to be assessed by way of a lump sum, in accordance with directions to be given by the Court following the final determination of the applicant's appeal from the Court's orders made on 1 August 2017.