Clone Pty Ltd v Players Pty Ltd (No 13)

Clone Pty Ltd and Players Pty Ltd were engaged in litigation which resulted in Clone being awarded costs. The primary dispute in this case was the calculation of interest on those costs and the associated costs of taxation. The Supreme Court of the relevant jurisdiction was tasked with resolving these issues. The central legal issues the court had to address included determining the appropriate starting date for calculating interest on Clone’s costs, whether the court should consider offers of settlement made during the taxation process, and the scope of arguments to be considered regarding the interest on costs.

The court began by examining the statutory framework, specifically Section 114 of the Supreme Court Act 1935, which mandates that interest is to be computed from certain specified dates. The court referenced the case of Burford v Allan, where it was held that a taxing officer’s discretion in determining the starting point for interest is not restricted and can consider various factors, including the delay attributable to the party seeking costs. However, the court noted the prohibition in Rule 187(4) which restricts the disclosure of settlement offers to the adjudicating officer unless all relevant questions have been determined. This rule was crucial in deciding that the court should not consider the settlement offers during the current phase of the litigation, as it could unduly influence the court’s discretion on the threshold questions regarding the interest on costs. Consequently, the court ruled that the starting date for interest should be determined based on the date of the certificate issued by the taxing officer, unless there were proper grounds to compute interest from an earlier date.

The court ordered a structured approach to resolve the outstanding issues, setting specific deadlines for the submission of affidavits, written submissions, and scheduling a hearing for argument. The parties were directed to provide a schedule of agreed amounts relating to GST on disbursements, file affidavits regarding interest calculations, and submit written arguments on the scope of the interest on costs issues to be argued. The court also clarified that Players' concerns about the scope of arguments on interest on costs issues would be addressed in a subsequent hearing.