CCL Secure Pty Ltd v Berry (No 2)

In the appeal of CCL Secure Pty Ltd v Berry, the Federal Court of Australia considered the costs order made by the primary judge and its implications in the context of a legal dispute. The appellant, Securency, sought to have the costs order set aside or modified, arguing that the respondents had only achieved partial success in their exaggerated claim for damages and that Securency had made a settlement offer prior to the trial. The respondents, however, resisted any changes to the costs order, asserting that the settlement offer did not meet the criteria of an orthodox Calderbank offer and that Securency's conduct warranted the costs order as it stood.

The court found that while the settlement offer by Securency did correctly identify the issues with the respondents' damages claim, it did not constitute an orthodox Calderbank offer as it was conditional upon the resolution of a separate proceeding in Nigeria. Additionally, the respondents achieved a significant outcome by obtaining a declaration that the termination letter was procured through wrongful conduct by Securency. Given these factors, the court concluded that the primary judge's costs order should remain in place, as the settlement offer did not satisfy the necessary conditions for altering the costs outcome.

In light of the Full Court's decision to uphold the primary judge's costs order, the court proceeded to determine the appropriate form of order to reflect the outcome of the appeal. The court ordered that the respondents pay 25% of the appellant's costs of the appeal, as agreed or taxed, and adjusted the quantum of damages to be paid by the appellant to the respondents to $1,780,858, effective from 17 August 2018. This order replaced the previous order made by the primary judge on 17 August 2018, ensuring that the judgment aligned with the findings and reasons provided by the Full Court.