Treloar Constructions Pty Limited v McMillan (No 2) [2017] NSWCA 146

Treloar Constructions Pty Limited v McMillan (No 2) [2017] NSWCA 146

The 7 November 2014 letter did not justify indemnity costs in the District Court because it gave no indication that non-acceptance would be relied on for a special costs order and therefore did not have the essential character of a Calderbank offer. The Court lacked a basis under CPA s 98 to order costs of the respondent's separate costs assessment application, which was governed by the Legal Profession Uniform Law (NSW). The 18 August 2016 letter was a valid UCPR r 20.26 offer of compromise, was not accepted, and the appellant obtained a judgment no less favourable than the offer, so UCPR r 42.14 entitled it to ordinary appeal costs up to 18 August 2016 and indemnity costs thereafter,...

Jurisdiction
Australia
Judgment Date
22 June 2017
Procedural Posture
Costs Motion Following Appeal / Determined on the Papers by the New South Wales Court of Appeal
Outcome
Motion allowed in part; security for costs released to the appellant; appellate orders varied; indemnity costs granted for the appeal from 18 August 2016 but not for the District Court proceedings or the costs assessment application.
Legal Topics
['indemnity Costs' 'calderbank Offer' 'offer of Compromise' 'security for Costs' 'variation of Appellate Orders' 'costs Assessment']
['civil Procedure' 'costs' 'appeals'] ['indemnity Costs' 'calderbank Offer' 'offer of Compromise' 'security for Costs' 'variation of Appellate Orders' 'costs Assessment']

Case Brief

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Procedural Posture

Costs Motion Following Appeal / Determined on the Papers by the New South Wales Court of Appeal

Legal Issues

  1. 1 ["Whether the appellant's 7 November 2014 settlement letter justified indemnity costs in the District Court as a Calderbank offer." "Whether this Court had power to order indemnity costs of the respondent's costs assessment application." "Whether the appellant's 18 August 2016 offer of compromise entitled it to indemnity costs of the appeal under UCPR r 42.14." 'Whether the security for costs paid into Court should be released to the appellant and the orders varied to include calculated interest.']

Ratio Decidendi

The 7 November 2014 letter did not justify indemnity costs in the District Court because it gave no indication that non-acceptance would be relied on for a special costs order and therefore did not have the essential character of a Calderbank offer. The Court lacked a basis under CPA s 98 to order costs of the respondent's separate costs assessment application, which was governed by the Legal Profession Uniform Law (NSW). The 18 August 2016 letter was a valid UCPR r 20.26 offer of compromise, was not accepted, and the appellant obtained a judgment no less favourable than the offer, so UCPR r 42.14 entitled it to ordinary appeal costs up to 18 August 2016 and indemnity costs thereafter,...

Court Disposition

Motion allowed in part; security for costs released to the appellant; appellate orders varied; indemnity costs granted for the appeal from 18 August 2016 but not for the District Court proceedings or the costs assessment application.

Orders

  • ['The security for costs paid into Court on 14 November 2016 by the appellant for the costs of the respondent in the sum of $75,000 be released to the appellant pursuant to r 41.3 of the Uniform Civil Procedure Rules 2005 (NSW).' "Order 2 made by the Court on 6 April 2017 be varied as follows: Set aside the orders...