Berrigan Shire Council v Ballerini (No 2)

In the case of Berrigan Shire Council v Ballerini (No 2), the plaintiff, Berrigan Shire Council, was involved in a legal dispute with two defendants, Ballerini. The matter was before the court to determine the allocation of costs following the outcome of the appeal and cross-appeal. The plaintiff had succeeded against both defendants in the lower court, but both defendants appealed the decision. One appeal was allowed, and the other dismissed. The plaintiff subsequently cross-appealed, which was also dismissed. The court needed to determine the appropriate order for costs under the Supreme Court (General Civil Procedure) Rules 2005, particularly in light of the Calderbank offers made by both the plaintiff and the successful appellant.

The primary legal issue before the court was whether a Bullock or Sanderson order should be made regarding the costs. A Bullock order refers to an order where the unsuccessful party pays costs from the date of the offer up until the conclusion of the proceedings, while a Sanderson order requires the unsuccessful party to pay costs from the date of the offer up until the date of the acceptance of the offer. The court had to consider the timing and nature of the Calderbank offers made by the plaintiff to the unsuccessful appellant and by the successful appellant to the unsuccessful appellant. The court also needed to weigh the principles of fairness and the practicalities of cost recovery in making its decision.

The court examined the Calderbank offers in detail and found that the plaintiff's offer was made before the successful appellant's offer. Given the timing and the fact that the plaintiff had succeeded against both defendants, the court concluded that the appropriate order was a Sanderson order for the unsuccessful appellant to pay costs from the date of the plaintiff's Calderbank offer to the date of its acceptance. The court rejected the unsuccessful appellant's argument that a Bullock order should apply because the successful appellant had made a subsequent offer. The court held that the plaintiff's earlier offer was the controlling factor.

The court dismissed the cross-appeal and allowed the appeal of the unsuccessful appellant. It ordered the unsuccessful appellant to pay the successful appellant's costs from the date of the plaintiff's Calderbank offer to the date of its acceptance. The unsuccessful appellant was also ordered to pay the plaintiff's costs from the date of the offer to the conclusion of the proceedings. The successful appellant was ordered to pay its own costs from the conclusion of the proceedings.