In the matter of Webster Consolidated (Holdings) Pty Ltd [2016] NSWSC 378

In the matter of Webster Consolidated (Holdings) Pty Ltd [2016] NSWSC 378

The Calderbank letter was read as containing two alternative offers, but even on that reading it was in substance an invitation for Mr Webster to surrender resistance to transfer, with only the modest inducement that costs would not be sought against him. Because substantial arguments could be and were advanced against transfer, including possible delay, it was not inevitable that Mr Webster would fail and it was not unreasonable for him to seek determination on the merits. The Plaintiff was therefore not entitled to indemnity costs, although ordinary costs followed the event on the transfer motion and Mr Webster received ordinary costs of the unsuccessful costs application.

Jurisdiction
Australia
Judgment Date
05 April 2016
Procedural Posture
Costs Application in Equity Corporations List Proceedings Concerning an Application to Set Aside a Creditor's Statutory Demand and Transfer Proceedings to the Family Court of Australia / Post Judgment Determination of Costs After the Notice of Motion for Transfer Was Determined
Outcome
The Plaintiff's application for indemnity costs was dismissed. Mr Webster was ordered to pay the Plaintiff's ordinary costs of the transfer motion, and the Plaintiff was ordered to pay Mr Webster's ordinary costs of the costs application.
Legal Topics
['indemnity Costs' 'calderbank Offers' "creditor's Statutory Demand" 'transfer of Proceedings to Family Court of Australia']
['civil Procedure' 'costs' 'corporations'] ['indemnity Costs' 'calderbank Offers' "creditor's Statutory Demand" 'transfer of Proceedings to Family Court of Australia']

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Procedural Posture

Costs Application in Equity Corporations List Proceedings Concerning an Application to Set Aside a Creditor's Statutory Demand and Transfer Proceedings to the Family Court of Australia / Post Judgment Determination of Costs After the Notice of Motion for Transfer Was Determined

Legal Issues

  1. 1 ["Whether the Plaintiff should receive indemnity costs because the Defendant did not accept the Plaintiff's Calderbank offer." 'Whether it was unreasonable for the Defendant not to accept the offer to consent to transfer of the proceedings to the Family Court of Australia or withdraw the Demand.' 'Whether the Calderbank letter was a genuine offer of compromise or was ambiguous because it addressed both transfer of the proceedings and withdrawal of the Demand.']

Ratio Decidendi

The Calderbank letter was read as containing two alternative offers, but even on that reading it was in substance an invitation for Mr Webster to surrender resistance to transfer, with only the modest inducement that costs would not be sought against him. Because substantial arguments could be and were advanced against transfer, including possible delay, it was not inevitable that Mr Webster would fail and it was not unreasonable for him to seek determination on the merits. The Plaintiff was therefore not entitled to indemnity costs, although ordinary costs followed the event on the transfer motion and Mr Webster received ordinary costs of the unsuccessful costs application.

Court Disposition

The Plaintiff's application for indemnity costs was dismissed. Mr Webster was ordered to pay the Plaintiff's ordinary costs of the transfer motion, and the Plaintiff was ordered to pay Mr Webster's ordinary costs of the costs application.

Orders

  • ['Mr Anthony Webster pay the costs of Webster Consolidated (Holdings) Pty Ltd of and incidental to the determination of the Notice of Motion filed 1 October 2015, up to and including 4 March 2016 on the ordinary basis, as agreed or as assessed.' "Webster Consolidated (Holdings) Pty Ltd pay Mr Webster's costs of and...