Ashell Homes Constructions Pty Ltd v Kobus
[2022] ACTSC 323
Para 1
…the defendants in the sum of $25,089.35 plus interest from the date proceedings were commenced, being 18 May 2020: Ashell Homes Constructions v Kobus [2022] ACTSC 323.…
Nova Builders Pty Ltd v Civil & Civic Corporation Pty Ltd
[2022] ACTSC 209
Para 1
…h what will constitute adequate reasons in the context of an appeal from an adjudication in Nova Builders Pty Ltd v Civil & Civic Corporation Pty Ltd [2022] ACTSC 209, where the principles from a number of the leading authorities applicable to reasons of both judges and tribunals were collected at [90]-[94]. I refe…
Anderson v Canaccord Genuity Financial Ltd (No 2)
[2022] NSWSC 649
Para 1
…More recently in Anderson v Canaccord Genuity Financial Ltd (No 2) [2022] NSWSC 649, and having referred to the above matters in Hazeldene’s Chicken , Ward CJ in Eq said at [26]:…
Southwell v Staite (No 2)
[2019] ACTSC 83
Para 1
…In Southwell v Staite (No 2) [2019] ACTSC 83, I discussed the necessary requirements for the Court to find that an offer could properly be described as a Calderbank offer, and when an effective Calderbank offer might give rise to an entitlement to indemnity costs, at [8]-[17]:…
DL v The Queen
[2018] HCA 32
Para 1
…to include an explanation of a necessary step to the final conclusion and the resolution of competing arguments (citing DL v The Queen [2018] HCA 26; 266 CLR 1 at [32]-[33]; AK v Western Australia [2008] HCA 8; 232 CLR 438 at [85]).…
DL v The Queen
[2018] HCA 26
Para 1
…equate reasons to include an explanation of a necessary step to the final conclusion and the resolution of competing arguments (citing DL v The Queen [2018] HCA 26; 266 CLR 1 at [32]-[33]; AK v Western Australia [2008] HCA 8; 232 CLR 438 at [85]).…
Tuggeranong Town Centre Pty Ltd v Brenda Hungerford Pty Limited (No 3)
[2017] ACTSC 301
Para 281
…344 at [8]; Tati v Stonewall Hotel Pty Ltd (No 2) [2012] NSWCA 124 at [10]; Tuggeranong Town Centre Pty Ltd v Brenda Hungerford Pty Limited (No 3) [2017] ACTSC 301; 325 FLR 436 at [281] and the case there-cited): (a) Was there was a genuine offer of compromise? (b) Was it was unreasonable for the offeree not to ac…
Priestley v Priestley (No 2)
[2016] NSWSC 1259
Para 1
…In that regard, cases such as Priestley v Priestley (No 2) [2016] NSWSC 1259 ( Priestley ) are of assistance. White J (as his Honour then was) traced through the history of the discretionary power as to costsfrom the perspective of the “frame of reference” by which success is to be judged (at [10]), stating at [49]…
Consolidated Lawyers Ltd v Abu-Mahmoud
[2016] NSWCA 4
Para 1
…uld be for remittal to the trial judge to provide those reasons. The plaintiff drew the Court’s attention to Consolidated Lawyers Ltd v Abu-Mahmoud [2016] NSWCA 4, where Macfarlan JA (with whom Bathurst CJ and Tobias AJA agreed) stated at [39]-[40] (emphasis added):…
Evans v Braddock (No 2)
[2015] NSWSC 518
Para 49
…], each relying on Evans Shire Council v Richardson (No 2) [2006] NSWCA 61 at [26]. See also the detailed discussion in Evans v Braddock (No 2) [2015] NSWSC 518 at [49]. 16. An offer to compromise involves an assessment, both by the offeror and the offeree, of the prospects of success of the claim, together with an…
Tuggeranong Town Centre Pty Ltd v Brenda Hungerford Pty Ltd
[2015] ACTSC 9
Para 281
…v Stonewall Hotel Pty Ltd (No 2) [2012] NSWCA 124 at [10]; Tuggeranong Town Centre Pty Ltd v Brenda Hungerford Pty Limited (No 3) [2017] ACTSC 301; 325 FLR 436 at [281] and the case there-cited): (a) Was there was a genuine offer of compromise? (b) Was it was unreasonable for the offeree not to accept it?…
Pires v DibbsBarker Canberra Pty Limited
[2014] ACTSC 283
Para 97
…r? 8. Principles relevant to Calderbank offersare set out in a number of decisions of Refshauge J, including Pires v DibbsBarker Canberra Pty Limited [2014] ACTSC 283 at [97] and Financial Integrity Pty Ltd v Farmer (No 4) [2014] ACTSC 145 at [24]- [46]. The criteria that I consider when determining whether a lette…
Vizovitis v Ryan (No 2)
[2014] ACTSC 301
Para 18
…costs based on the rejection of an offer of compromise being unreasonable: see Kemp v Ryan [2011] ACTSC 42 at [18] and Vizovitis v Ryan (No 2) [2014] ACTSC 301 at [17], each relying on Evans Shire Council v Richardson (No 2) [2006] NSWCA 61 at [26]. See also the detailed discussion in Evans v Braddock (No 2) [2015…
Hillman v Box (No 5)
[2014] ACTSC 150
Para 30
…e isolated in a way that makes it clear and capable of proper assessment without a taxation or formal assessment of costs: Hillman v Box (No 5) [2014] ACTSC 150 at [30]. What constitutes an unreasonable rejection of an offer? 14. If it is found that a Calderbank offer was properly made, and that it was a genuine of…
Financial Integrity Pty Ltd v Farmer (No 4)
[2014] ACTSC 145
Para 24
…decisions of Refshauge J, including Pires v DibbsBarker Canberra Pty Limited [2014] ACTSC 283 at [97] and Financial Integrity Pty Ltd v Farmer (No 4) [2014] ACTSC 145 at [24]- [46]. The criteria that I consider when determining whether a letter constitutes a Calderbank offer are as follows: (a) The letter must be e…
Tati v Stonewall Hotel Pty Ltd (No 2)
[2012] NSWCA 124
Para 10
…is to ask two questions( Miwa Properties Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344 at [8]; Tati v Stonewall Hotel Pty Ltd (No 2) [2012] NSWCA 124 at [10]; Tuggeranong Town Centre Pty Ltd v Brenda Hungerford Pty Limited (No 3) [2017] ACTSC 301; 325 FLR 436 at [281] and the case there-cited): (a) W…
Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2)
[2011] NSWCA 344
Para 8
…exercised? 10. A common approach to applications of this kind is to ask two questions( Miwa Properties Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344 at [8]; Tati v Stonewall Hotel Pty Ltd (No 2) [2012] NSWCA 124 at [10]; Tuggeranong Town Centre Pty Ltd v Brenda Hungerford Pty Limited (No 3) [2017] A…
Kemp v Ryan
[2011] ACTSC 42
Para 18
…stablishing the entitlement to an award of indemnity costs based on the rejection of an offer of compromise being unreasonable: see Kemp v Ryan [2011] ACTSC 42 at [18] and Vizovitis v Ryan (No 2) [2014] ACTSC 301 at [17], each relying on Evans Shire Council v Richardson (No 2) [2006] NSWCA 61 at [26]. See also the…
Bostik Australia Pty Ltd v Liddiard (No 2)
[2009] NSWCA 304
Para 38
…[10] In Bostik Australia Pty Ltd v Liddiard (No 2 ) [2009] NSWCA 304 at [38], the NSW Court of Appeal summarised the principles governing the making of orders for costs where the successful party has not succeeded on all issues: · Where there are multiple issues in a case the Court generally does not attempt to dif…
Tabcorp Holdings Ltd v Bowen Investments Pty Ltd
[2009] HCA 8
Para 1
…party dealt with the consequences of its application for the facts of the case here. Importantly, in Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8; 236 CLR 272, the High Court (French CJ, Gummow, Heydon, Crennan and Kiefel JJ) stated at [13] that damages for breach of contract are intended to pu…
Corbett Court Pty Ltd v Quasar Constructions (NSW) Pty Ltd
[2008] NSWSC 1423
…son CJ in EQ, 3 June 1998, unreported); Short v Crawley (No 40) [2008] NSWSC 1302 at [32]; Corbett Court Pty Ltd v Quasar Constructions (NSW) Pty Ltd [2008] NSWSC 1423).…
Short v Crawley (No 40)
[2008] NSWSC 1302
Para 32
…t Trustee Australia v FAI General Insurance Co (Supreme Court of New South Wales, Hodgson CJ in EQ, 3 June 1998, unreported); Short v Crawley (No 40) [2008] NSWSC 1302 at [32]; Corbett Court Pty Ltd v Quasar Constructions (NSW) Pty Ltd [2008] NSWSC 1423).…
Precision Products (NSW) Pty Ltd v Hawkesbury City Council
[2008] NSWCA 278
…agreed); the full parameters of the dispute remaining uncertain at the time of the offer ( Precision Products (NSW) Pty Ltd v Hawkesbury City Council (2008) 74 NSWLR 102; [2008] NSWCA 278 at [192] per Allsop P, as his Honour then was, Beazley JA, as Her Excellency then was, and McColl JA agreeing); the offeror’s case…
Ofria v Cameron (No 2)
[2008] NSWCA 242
Para 27
…9. An effective offer may be made before an action commences: Ofria v Cameron (No 2) [2008] NSWCA 242 at [27]. How is the Court’s discretion to be exercised? 10. A common approach to applications of this kind is to ask two questions( Miwa Properties Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344 at [8…
AK v Western Australia
[2008] HCA 8
Para 1
…o the final conclusion and the resolution of competing arguments (citing DL v The Queen [2018] HCA 26; 266 CLR 1 at [32]-[33]; AK v Western Australia [2008] HCA 8; 232 CLR 438 at [85]).…
Monie v Commonwealth of Australia (No 2)
[2008] NSWCA 15
Para 13
…tion is whether the offer is made in terms that enable the offeree to give proper consideration to it: Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15 ( Monie )at [13]. An offer made inclusive of costs may create difficulties if the Court is not readily able to determine the various components of an offer…
Elite Protective Personnel Pty Ltd v Salmon
[2007] NSWCA 322
Para 5
…ompromise: DSE (Holdings) Pty Ltd v Intertan Inc [2004] FCA 1251; 51 ACSR 555 at 557 and [12]-[13]; Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322 at [5] per Beazley JA (as her Honour then was), at [135] per Basten JA. 12. However, the question is whether the offer is made in terms that enable the off…
Conroy's Smallgoods Pty Ltd v Channel Seven Adelaide Pty Ltd
[2007] SASC 76
Para 1
…be found in a decision of the Full Court of the Supreme Court of South Australia, Conroy's Smallgoods Pty Ltd & Anor V Channel Seven Adelaide Pty Ltd [2007] SASC 76, where it was stated (at [367]) after a discussion of some of the leading authorities in relation to a failure to give reasons:…
Vale v Eggins (No 2)
[2007] NSWCA 12
Para 22
…onable, and tending against such finding, have included: all relevant evidence not having been served at the time of the offer ( Vale v Eggins (No 2) [2007] NSWCA 12 at [22] per Beazley JA, as her Excellency then was, with whom McColl JA agreed); the full parameters of the dispute remaining uncertain at the time o…
Evans Shire Council v Richardson (No 2)
[2006] NSWCA 61
Para 26
…mp v Ryan [2011] ACTSC 42 at [18] and Vizovitis v Ryan (No 2) [2014] ACTSC 301 at [17], each relying on Evans Shire Council v Richardson (No 2) [2006] NSWCA 61 at [26]. See also the detailed discussion in Evans v Braddock (No 2) [2015] NSWSC 518 at [49]. 16. An offer to compromise involves an assessment, both by t…
South Eastern Sydney Area Health Service v King
[2006] NSWCA 2
…ency then was, and McColl JA agreeing); the offeror’s case changing after the making of the offer ( South Eastern Sydney Area Health Service v King [2006] NSWCA 2 ( South Eastern Sydney Area Health Service ) at [85] per Hunt AJA, Mason P and McColl JA agreeing); the inclusion of conditions in the offer ( Magenta…
Vairy v Wyong Shire Council
[2005] HCA 62
…ncy then was, with whom McColl JA agreed); the full parameters of the dispute remaining uncertain at the time of the offer ( Precision Products (NSW) Pty Ltd v Hawkesbury City Council (2008) 74 NSWLR 102; [2008] NSWCA 278 at [192] per Allsop P, as his Honour then was, Beazley JA, as Her Excellency then was, and McColl JA agreeing); the of…
Hunter v Transport Accident Commission
[2005] VSCA 1
Para 1
…The reference in the last dot point was to Hunter v Transport Accident Commission [2005] VSCA 1; 43 MVR 130. It is one aspect of the wider basis for a judicial duty to give reasons, emphasised in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 278 per McHugh JA, that “justice must not only be done…
DSE (Holdings) Pty Ltd v InterTAN Inc
[2004] FCA 1251
…ive of costs. An offer may be made “inclusive of costs”, and accepted as a genuine assessable compromise: DSE (Holdings) Pty Ltd v Intertan Inc [2004] FCA 1251; 51 ACSR 555 at 557 and [12]-[13]; Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322 at [5] per Beazley JA (as her Honour then was), at [135] pe…
DSE (Holdings) Pty Limited v Intertan Inc
[2003] FCA 1092
…offer may be made “inclusive of costs”, and accepted as a genuine assessable compromise: DSE (Holdings) Pty Ltd v Intertan Inc [2004] FCA 1251; 51 ACSR 555 at 557 and [12]-[13]; Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322 at [5] per Beazley JA (as her Honour then was), at [135] per Basten JA.…
Whisprun Pty Ltd v Dixon
[2003] HCA 48
Para 1
…In light of the argument made by the plaintiff, it is appropriate to recall what was said in Whisprun Pty Ltd v Dixon [2003] HCA 48; 200 ALR 447 at [62]:…
MGICA (1992) Pty Ltd v Kenny & Good Pty Ltd (No 2)
[1996] FCA 862
…st 1995, unrep); and the issues in dispute in the proceedings being complex ( MGICA (1992) Pty Ltd v Kenny & Good Pty Ltd (No 2) (1996) 70 FCR 236; [1996] FCA 862 at 242D per Lindgren J).…
Autodesk Inc v Dyason (No 2)
[1993] HCA 6
Para 1
…aution and the circumstances in which a judgment which has been pronounced may be reopened are therefore extremely rare: Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 ( Autodesk (No 2) ) at 302-303; Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 ( Wentworth ) at 684. The exercise of the power has been d…
State Rail Authority of New South Wales v Codelfa Construction Pty Ltd
[1982] HCA 51
Para 1
…worth ) at 684. The exercise of the power has been described as an indulgence: State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (1982) 150 CLR 29 ( Codelfa ) at 45-46.…
Wentworth v Woollahra Municipal Council
[1982] HCA 41
Para 1
…are therefore extremely rare: Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 ( Autodesk (No 2) ) at 302-303; Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 ( Wentworth ) at 684. The exercise of the power has been described as an indulgence: State Rail Authority of New South Wales v Codelfa Construction P…
Bellgrove v Eldridge
[1954] HCA 36
Para 1
…This principle was applied in Bellgrove v Eldridge [1954] HCA 36; 90 CLR 613 ( Bellgrove ), where the High Court dealt with a defective building work case. The contract specified concrete in certain proportions of metal, sand and cement. The builder used concrete mixed in different portions of lime, sand and cem…
Tabcorp Holdings Ltd v Bowen Investments Pty Ltd
154 ER 363
Para 1
…h what it meant for the compensation to be awarded in this case. The principle that applies is that specified in Robinson v Harman [1848] 1 Ex 850; 154 ER 363, 365 ( Robinson ):…
Soulemezis v Dudley (Holdings) Pty Ltd
(1987) 10 NSWLR 24
Para 1
…ter v Transport Accident Commission [2005] VSCA 1; 43 MVR 130. It is one aspect of the wider basis for a judicial duty to give reasons, emphasised in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 278 per McHugh JA, that “justice must not only be done but it must be seen to be done”.…
Chicken Farm Pty Ltd v Victorian Workcover Authority
(2005) VR 435
…ient material to enable that assessment to be made: Monie at [9]. 17. Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) VR 435 contains a non-exhaustive list of relevant factors relevant to assessing whether it was unreasonable to reject an offer at [25], including: (a) the stage of…