Silver Star Fashions Pty Ltd v Dal Broi (No 2) [2018] NSWSC 1697

Silver Star Fashions Pty Ltd v Dal Broi (No 2) [2018] NSWSC 1697

Plaintiff unreasonably rejected a genuine Calderbank offer. OZD, as the effective plaintiff, was in a position to assess its prospects and failed to accept an offer more favourable than trial outcome. Therefore, indemnity costs are justified from 23 March 2018. Limiting costs of separately represented defendants is not warranted without specific and timely objection; the eleventh and twelfth defendants did not act unreasonably.

Jurisdiction
Australia
Judgment Date
08 November 2018
Procedural Posture
Application Under Conveyancing Act S 66 Zl(6) / Post Judgment Costs Applications; Orders Varied
Outcome
Plaintiff's costs order varied: pay first to tenth defendants' costs on ordinary basis until 22 March 2018, indemnity basis thereafter; plaintiff's motion regarding eleventh and twelfth defendants' costs dismissed; plaintiff to pay eleventh and twelfth defendants' costs of the motion.
Legal Topics
['costs' 'civil Procedure' 'offers of Compromise' 'indemnity Costs' 'separate Legal Representation']
['equity'] ['costs' 'civil Procedure' 'offers of Compromise' 'indemnity Costs' 'separate Legal Representation']

Case Brief

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Procedural Posture

Application Under Conveyancing Act S 66 Zl(6) / Post Judgment Costs Applications; Orders Varied

Legal Issues

  1. 1 ['Whether indemnity costs should be awarded to first to tenth defendants following rejection of Calderbank offer' 'Whether costs payable to eleventh and twelfth defendants should be limited due to separate legal representation']

Ratio Decidendi

Plaintiff unreasonably rejected a genuine Calderbank offer. OZD, as the effective plaintiff, was in a position to assess its prospects and failed to accept an offer more favourable than trial outcome. Therefore, indemnity costs are justified from 23 March 2018. Limiting costs of separately represented defendants is not warranted without specific and timely objection; the eleventh and twelfth defendants did not act unreasonably.

Court Disposition

Plaintiff's costs order varied: pay first to tenth defendants' costs on ordinary basis until 22 March 2018, indemnity basis thereafter; plaintiff's motion regarding eleventh and twelfth defendants' costs dismissed; plaintiff to pay eleventh and twelfth defendants' costs of the motion.

Orders

  • ["Plaintiff to pay first to tenth defendants' costs of proceedings on ordinary basis up to 22 March 2018 and on indemnity basis from 23 March 2018." "Plaintiff's Notice of Motion filed on 11 October 2018 dismissed." "Plaintiff to pay eleventh and twelfth defendants' costs of the motion."]