Valmont Interiors Pty Ltd v Giorgio Armani Australia Pty Ltd (No 3) [2021] NSWCA 160

Valmont Interiors Pty Ltd v Giorgio Armani Australia Pty Ltd (No 3) [2021] NSWCA 160

Given Valmont's net success at appeal and the fact that Armani's Second Calderbank Offer exceeded the outcome, and considering the circumstances and offers exchanged, there should be no order as to costs at first instance up to 13 July 2020, but Valmont should pay Armani's costs on the indemnity basis from that...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
03 August 2021
Procedural Posture
Civil / Appeal After Original Costs Order at First Instance
Outcome
Orders 3 and 4 of the primary judge set aside. No order as to costs at first instance up to 13 July 2020, save for previous adverse costs orders. Plaintiff to pay defendant's costs at first instance on the indemnity basis thereafter.
Legal Topics
['costs' 'calderbank Offers' 'indemnity Costs']
['civil Procedure'] ['costs' 'calderbank Offers' 'indemnity Costs']

Source-derived case record

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Procedural Posture

Civil / Appeal After Original Costs Order at First Instance

Legal Issues

  1. 1 ['Appropriate costs order at first instance following appeal success and prior Calderbank (without prejudice save as to costs) offers by respondent' 'Effect of failing to accept a Calderbank offer exceeding the ultimate outcome']

Ratio Decidendi

Given Valmont's net success at appeal and the fact that Armani's Second Calderbank Offer exceeded the outcome, and considering the circumstances and offers exchanged, there should be no order as to costs at first instance up to 13 July 2020, but Valmont should pay Armani's costs on the indemnity basis from that date. Valmont unreasonably rejected a genuine Calderbank offer, justifying indemnity costs from the date of rejection.

Court Disposition

Orders 3 and 4 of the primary judge set aside. No order as to costs at first instance up to 13 July 2020, save for previous adverse costs orders. Plaintiff to pay defendant's costs at first instance on the indemnity basis thereafter.

Orders

  • ['Set aside orders 3 and 4 made by the primary judge on 12 February 2021.' "Order that, save for adverse costs orders made against the defendant prior to 13 July 2020, there be no order as to costs of the proceedings at first instance up to and including 13 July 2020, but that the plaintiff pay the defendant's costs...