LIQUORLAND (AUSTRALIA) PTY LTD v GYG HOLDINGS PTY LTD AND ORS [1995] NSWCA 261

LIQUORLAND (AUSTRALIA) PTY LTD v GYG HOLDINGS PTY LTD AND ORS [1995] NSWCA 261

The tender of 'without prejudice' correspondence was rejected because there was no express reservation of later use as required by Calderbank v Calderbank, nor were the procedures under Supreme Court Rules Pt22 and Pt52 utilised. Therefore, there was no evidentiary foundation for the claim to indemnity costs, and the motion must fail.

Parties
Claimant: Liquorland (Australia) Pty Ltd; Opponent: GYG Holdings Pty Ltd
Jurisdiction
Australia
Judgment Date
27 March 1995
Procedural Posture
Motion / Post Judgment Costs Application
Outcome
motion dismissed
Legal Topics
Without Prejudice Correspondence, Indemnity Costs, Offer of Compromise
Practice and Procedure Costs Legal Practitioners Without Prejudice Correspondence Indemnity Costs Offer of Compromise

Case Brief

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Parties

Liquorland (Australia) Pty Ltd

Claimant

GYG Holdings Pty Ltd

Opponent

Procedural Posture

Motion / Post Judgment Costs Application

Legal Issues

  1. 1 Whether 'without prejudice' correspondence may be tendered in support of an application for indemnity costs without express reservation as per Calderbank v Calderbank.
  2. 2 Whether the letters marked 'without prejudice' are admissible in evidence for the motion for indemnity costs.

Ratio Decidendi

The tender of 'without prejudice' correspondence was rejected because there was no express reservation of later use as required by Calderbank v Calderbank, nor were the procedures under Supreme Court Rules Pt22 and Pt52 utilised. Therefore, there was no evidentiary foundation for the claim to indemnity costs, and the motion must fail.

Court Disposition

motion dismissed

Orders

  • Motion dismissed
  • Claimant to pay opponent's costs of the motion