Vintage Marine Art Pty Ltd v Robert Craig Henderson [2015] NSWSC 1660

Vintage Marine Art Pty Ltd v Robert Craig Henderson [2015] NSWSC 1660

The offer made by the plaintiff was a genuine compromise, and it was unreasonable for the defendants to reject the Calderbank offer. Therefore, costs orders should reflect the timing and reasonableness of the parties’ conduct, with the plaintiff to pay defendants' costs up to the offer and defendants to pay plaintiff's costs thereafter on an indemnity basis.

Parties
Plaintiff: Vintage Marine Art Pty Ltd; First Defendant: Robert Craig Henderson; Second Defendant: Douglas Cremer
Jurisdiction
Australia
Judgment Date
09 November 2015
Procedural Posture
Interlocutory Application Regarding Security for Costs and Costs Orders / Decision on Costs Following Motion for Security for Costs
Outcome
Costs order made: plaintiff to pay defendants’ costs to 24 August 2015 (ordinary basis); defendants to pay plaintiff’s costs from 25 August 2015 (indemnity basis) on the notice of motion filed 22 June 2015.
Legal Topics
Costs, Indemnity Costs, Calderbank Offer, Security for Costs
Civil Procedure Costs Indemnity Costs Calderbank Offer Security for Costs

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Parties

Vintage Marine Art Pty Ltd

Plaintiff

Robert Craig Henderson

First Defendant

Douglas Cremer

Second Defendant

Procedural Posture

Interlocutory Application Regarding Security for Costs and Costs Orders / Decision on Costs Following Motion for Security for Costs

Legal Issues

  1. 1 Whether costs should be awarded on an indemnity basis after a Calderbank offer was made
  2. 2 Reasonableness of rejecting a Calderbank offer in security for costs motion

Ratio Decidendi

The offer made by the plaintiff was a genuine compromise, and it was unreasonable for the defendants to reject the Calderbank offer. Therefore, costs orders should reflect the timing and reasonableness of the parties’ conduct, with the plaintiff to pay defendants' costs up to the offer and defendants to pay plaintiff's costs thereafter on an indemnity basis.

Court Disposition

Costs order made: plaintiff to pay defendants’ costs to 24 August 2015 (ordinary basis); defendants to pay plaintiff’s costs from 25 August 2015 (indemnity basis) on the notice of motion filed 22 June 2015.

Orders

  • The plaintiff is to pay the defendants’ costs of the notice of motion filed 22 June 2015 up to 24 August 2015 on an ordinary basis.
  • The defendants are to pay the plaintiff's costs of the notice of motion dated 22 June 2015 from 25 August 2015 on an indemnity basis.