The Real Thing Food Supplements CC v Media Tag Pty Ltd (No 2) [2018] NSWSC 850

The Real Thing Food Supplements CC v Media Tag Pty Ltd (No 2) [2018] NSWSC 850

Although Media Tag achieved a result better than its Calderbank offer, the offer was a walk away offer made about 15 months before the hearing, before pleadings had closed and before evidence was served. In those circumstances it amounted to an invitation to surrender, and it was not unreasonable for the plaintiff...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
07 June 2018
Procedural Posture
Costs Application in Equity Commercial List Proceedings / On the Papers After Principal Judgment
Outcome
Proceedings dismissed with costs; indemnity costs order sought by Media Tag not made.
Legal Topics
['party/party Costs' 'indemnity Costs' 'calderbank Offer' 'walk Away Offer' 'reasonableness of Non Acceptance']
['costs'] ['party/party Costs' 'indemnity Costs' 'calderbank Offer' 'walk Away Offer' 'reasonableness of Non Acceptance']

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Procedural Posture

Costs Application in Equity Commercial List Proceedings / On the Papers After Principal Judgment

Legal Issues

  1. 1 ['Whether Media Tag should have its costs on an indemnity basis from 21 February 2017 by reason of a Calderbank offer made on 20 January 2017.' 'Whether it was unreasonable for the plaintiff not to accept a walk away offer made at a relatively early stage in the proceedings.']

Ratio Decidendi

Although Media Tag achieved a result better than its Calderbank offer, the offer was a walk away offer made about 15 months before the hearing, before pleadings had closed and before evidence was served. In those circumstances it amounted to an invitation to surrender, and it was not unreasonable for the plaintiff not to accept it. The Court therefore did not make the special indemnity costs order sought.

Court Disposition

Proceedings dismissed with costs; indemnity costs order sought by Media Tag not made.

Orders

  • ['The proceedings be dismissed with costs.']