WIB Australia Pty Ltd v Bi (No 2) [2024] NSWDC 51

WIB Australia Pty Ltd v Bi (No 2) [2024] NSWDC 51

Although the defendants were successful in the ultimate outcome and bettered their Calderbank offers, it was not unreasonable for the plaintiff to reject either offer because the offers did not expressly identify the issue on which the defendants ultimately succeeded, the first offer was made early and before evidence was served, and both offers relied on matters on which the defendants were ultimately unsuccessful. The defendants also failed on significant factual and legal issues that consumed substantial hearing time, including execution of documents, special disadvantage, lack of commercial experience, unconscionability and uncertainty. In the exercise of the costs discretion, the...

Jurisdiction
Australia
Judgment Date
23 February 2024
Procedural Posture
Civil Costs Application / Post Judgment Determination of Costs Following WIB Australia Pty Ltd V Bi [2023] NSWDC 571
Outcome
No order as to costs; each party is to bear its or their costs of the proceedings.
Legal Topics
['calderbank Offers' 'indemnity Costs' 'costs Follow the Event' 'no Order as to Costs' 'mixed Success on Issues']
['costs' 'civil Procedure'] ['calderbank Offers' 'indemnity Costs' 'costs Follow the Event' 'no Order as to Costs' 'mixed Success on Issues']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Civil Costs Application / Post Judgment Determination of Costs Following WIB Australia Pty Ltd V Bi [2023] NSWDC 571

Legal Issues

  1. 1 ["Whether the plaintiff's failure to accept the defendants' Calderbank offers dated 9 January 2023 and 12 October 2023 was unreasonable in the circumstances" 'Whether the defendants should receive costs on the usual basis and indemnity basis, or some proportion of their costs, despite failing on a number of significant issues' 'Whether costs should follow the event or whether the parties should each bear their own costs']

Ratio Decidendi

Although the defendants were successful in the ultimate outcome and bettered their Calderbank offers, it was not unreasonable for the plaintiff to reject either offer because the offers did not expressly identify the issue on which the defendants ultimately succeeded, the first offer was made early and before evidence was served, and both offers relied on matters on which the defendants were ultimately unsuccessful. The defendants also failed on significant factual and legal issues that consumed substantial hearing time, including execution of documents, special disadvantage, lack of commercial experience, unconscionability and uncertainty. In the exercise of the costs discretion, the...

Court Disposition

No order as to costs; each party is to bear its or their costs of the proceedings.

Orders

  • ['There be no order as to the costs of the proceedings with the intent that each party is to bear its or their costs of the proceedings.' 'There should be no separate costs order for the hearing as to costs.']