Value Constructions Pty Ltd v Badra (No 2) [2024] NSWCA 212

Value Constructions Pty Ltd v Badra (No 2) [2024] NSWCA 212

The offer of compromise and Calderbank letter did not manifest a real element of compromise when assessed cumulatively, having regard to the small reduction in judgment sum, the unexplained and excessive asserted costs before submissions had been exchanged, the waiver of post-judgment interest, the timing of the offer and the nature of the issues. Mr Badra was therefore not entitled to indemnity costs, but was entitled to ordinary costs save for paying Value's costs of the indemnity costs application. The active role played by the second and third respondents was appropriate and useful, including their submissions leading to the agreed orders and their opposition to ground 5, so Value was...

Jurisdiction
Australia
Judgment Date
02 September 2024
Procedural Posture
Costs in Civil Appeal / Determination on the Papers After Appeal Judgment
Outcome
The appellant was ordered to pay the respondents' costs of the appeal on the ordinary basis, with the first respondent to pay the appellant's costs of the first respondent's unsuccessful indemnity costs application.
Legal Topics
['indemnity Costs' 'offer of Compromise' 'calderbank Offer' 'real and Genuine Element of Compromise' 'costs of Active Respondents']
['costs' 'civil Procedure'] ['indemnity Costs' 'offer of Compromise' 'calderbank Offer' 'real and Genuine Element of Compromise' 'costs of Active Respondents']

Case Brief

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Procedural Posture

Costs in Civil Appeal / Determination on the Papers After Appeal Judgment

Legal Issues

  1. 1 ['Whether the first respondent should receive indemnity costs from 1 March 2024 based on an offer of compromise or Calderbank offer.' "Whether the second and third respondents should pay the appellant's costs, each side should bear their own costs, or the appellant should pay their costs of the appeal."]

Ratio Decidendi

The offer of compromise and Calderbank letter did not manifest a real element of compromise when assessed cumulatively, having regard to the small reduction in judgment sum, the unexplained and excessive asserted costs before submissions had been exchanged, the waiver of post-judgment interest, the timing of the offer and the nature of the issues. Mr Badra was therefore not entitled to indemnity costs, but was entitled to ordinary costs save for paying Value's costs of the indemnity costs application. The active role played by the second and third respondents was appropriate and useful, including their submissions leading to the agreed orders and their opposition to ground 5, so Value was...

Court Disposition

The appellant was ordered to pay the respondents' costs of the appeal on the ordinary basis, with the first respondent to pay the appellant's costs of the first respondent's unsuccessful indemnity costs application.

Orders

  • ["The appellant is to pay the first respondent's costs of the appeal, save that the first respondent is to pay the appellant's costs of his application for indemnity costs." "The appellant is to pay the second and third respondents' costs of the appeal."]