Classics for a Cause Pty Ltd v Grays Ecommerce Group Ltd (No 2) - [2023] NSWSC 1206

Supreme Court

New South Wales

Medium Neutral Citation: Classics for a Cause Pty Ltd v Grays Ecommerce Group Ltd (No 2) [2023] NSWSC 1206
Hearing dates: On the papers
Date of orders: 12 October 2023
Decision date: 12 October 2023
Jurisdiction: Equity - Commercial List
Before: Rees J
Decision:
Indemnity costs ordered from offer of compromise.

Catchwords:
COSTS — offer of compromise — plaintiff sues two defendants — second defendant cross claims against plaintiff and first defendant — first defendant makes offer of compromise which, if accepted, leaves claim against second defendant and cross claim on foot — whether Court should “order otherwise” in these circumstances — whether first defendant succeeded on a basis not pleaded at time of offer – no reason to ‘order otherwise’.

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW) r 20.26, 42.15A

Cases Cited:
Bonanno v Finamore (No 2) [2023] NSWCA 24
CIMIC Group Ltd v AIG Australia Ltd (No 2) [2023] NSWSC 640
Futuretronics.com.au Pty Ltd v Graphix Labels Pty Ltd [2009] FCAFC 40
IFTC Broking Services Ltd v Commissioner of Taxation (2010) 268 ALR 1; [2010] FCAFC 31
Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391
Morgan v Johnson (1998) 44 NSWLR 578
Nemeth v Prynew Pty Ltd [2009] NSWSC 511
Croghan v Blacktown City Council (2019) 100 NSWLR 757; [2019] NSWCA 248
New South Wales Insurance Ministerial Corp v Reeve (1993) 42 NSWLR 100
Port Kembla Coal Terminal Ltd v Braverus Maritime Inc (No 2) [2004] FCA 1437; (2004) 212 ALR 281
SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323
Walker v Harwood [2017] NSWCA 228
Zhang v Popvic (No 2) [2016] NSWSC 666

Category: Costs
Parties: Classics for a Cause Pty Ltd (Plaintiff)
Grays Ecommerce Group Ltd (First Defendant)
Xclusive Tech Pty Ltd trading as LMCT Plus (Second Defendant)
Representation:
Counsel:
Mr JW Peden KC (Plaintiff)
Mr RM Higgins (First Defendant)
Mr J Levine (Second Defendant)
Solicitors:
TDL Law (Plaintiff)
Sphere Legal (First Defendant)
Matrix Legal (Second Defendant)

File Number(s): 2021/347665

JUDGMENT

HER HONOUR: I gave judgment in this matter on 18 August 2023, dismissing the plaintiff’s claim with costs: Classics for a Cause Pty Ltd v Grays Ecommerce Group Ltd [2023] NSWSC 967. The first defendant (Grays) now seeks an indemnity costs order on the basis of an offer of compromise or, alternatively, a later Calderbank letter. It is only necessary to consider the former.

The proceedings

The plaintiff and second defendant were rival bidders for a car in an online auction conducted by Grays on 30 November 2021. Due to a technological error, the online auction closed prematurely, with the plaintiff recorded as the highest bidder. Grays cancelled the first auction and conducted a second auction. The second defendant was the highest bidder at the second auction.
On 7 December 2021, the plaintiff sued Grays for damages for breach of contract. Alternatively, the plaintiff sued Grays and the second defendant for damages for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWSC 1206
Decision Date: 12 October 2023

CaseChat Overview and Summary

The plaintiffs, Classics for a Cause, brought a claim against two defendants, the second of which was Grays Ecommerce Group. The defendants counterclaimed against both the plaintiffs and the first defendant. The first defendant made an offer of compromise which, if accepted, would leave the claim against the second defendant and the cross claim on foot. The issue before the court was whether it should order otherwise in these circumstances. Another issue was whether the first defendant succeeded on a basis not pleaded at the time of the offer.

The court found that there was no reason to order otherwise in these circumstances. The court considered that it was sufficient for the first defendant to have made an offer of compromise, and the plaintiffs’ decision to reject it was not a factor in determining whether the court should order otherwise. The court found that the first defendant did not succeed on a basis not pleaded at the time of the offer. The court found that the first defendant’s argument was based on the same legal principle as the one pleaded at the time of the offer, and there was no reason to conclude that the first defendant had succeeded on a different basis. The court found that there was no reason to order otherwise in these circumstances.

The court dismissed the plaintiffs’ claim and ordered the plaintiffs to pay the costs of the defendants on the offer of compromise. The court did not order the plaintiffs to pay the costs of the defendants on the cross claim because the first defendant had not made an offer of compromise in relation to that claim. The court did not order the defendants to pay the costs of the plaintiffs because the plaintiffs had not succeeded on their claim.

Orders