Capitalink Pty Ltd v Withnall (No.3)

District Court

New South Wales

Medium Neutral Citation:

Capitalink Pty Ltd v Withnall (No.3) [2024] NSWDC 3

Hearing dates:

On the papers

Date of orders:

29 January 2024

Decision date:

29 January 2024

Jurisdiction:

Civil

Before:

Abadee DCJ

Decision:

See paragraph 27

Catchwords:

COSTS – application for partial order for indemnity costs – losing party’s rejection of Calderbank offer – offeror’s explanatory reasoning in the Calderbank letter omitted reference to the dispositive point at the hearing

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), rr 42.2, 42.5

Cases Cited:

Calderbank v Calderbank [1975] 3 All ER 333

Capitalink Pty Ltd v Withnall (No.2) [2023] NSWDC 547

Texts Cited:

Nil

Category:

Costs

Parties:

Capitalink Pty Ltd (ACN 602 481 685) (plaintiff)
Marc Douglas Withnall (defendant)

Representation:

Counsel:
M. Fernandes (plaintiff)
M. Connor (defendant)

Solicitors:
Centurion Lawyers (plaintiff)
Macpherson Kelley Lawyers (defendant)

File Number(s):

2021/357102

Publication restriction:

Nil

REASONS FOR JUDGMENT

Background

1. On 7 December 2023 I gave judgment for the plaintiff for nominal damages ($100) in this proceeding, which featured a creditor’s claim against a surety. My reasons have been published on Caselaw (Capitalink Pty Ltd v Withnall (No.2) [2023] NSWDC 547).

2. As indicated in those reasons, although I made a costs order in favour of the defendant (order 2), that was without having heard from the parties on the question of costs and order 3 provided the opportunity for the parties to apply to vary it.

3. The defendant (Mr Withnall) availed itself of that opportunity and now applies for an order that his costs be paid by the plaintiff (Capitalink) on the ordinary basis up to 19 October 2023 and on an indemnity basis thereafter.

4. Capitalink does not dispute Mr Withnall obtaining an order for costs, however it does oppose the application that they be partly paid on an indemnity basis.

Mr Withnall’s Calderbank offer

5. Mr Withnall’s application is based upon a letter emailed (at 3:14pm) to Capitalink’s solicitors on 20 October 2023 and a supplementary email on the same day (3:56pm). The supplementary email corrected the quantum of the monetary offer of settlement described in the letter. To place the timing of that correspondence in temporal context, the hearing commenced on 30 November 2023 and the proceeding had commenced on 16 December 2021.

6. The letter was expressed to be ‘without prejudice save as to costs.’ Towards the end of it, express reference was made to the principles in Calderbank v Calderbank [1975] 3 All ER 333.

7. The substantial terms of the letter featured Mr Withnall’s offer to settle the proceeding on the basis that:

1. he pay Capitalink the sum of $50,000 (as the sum was corrected in the supplementary email) within 28 days;

2. the proceeding be dismissed;

3. each party bear their own costs of the proceeding; and

4. any security paid into Court be returned to Capitalink.

8. Within the letter the author provided commentary upon the merits of Capitalink’s claim. The commentary was said to relate to both the liability and quantum aspects of Capitalink’s claim.

9. More specifically,…