CSR Ltd v Amaca Pty Ltd (No 2)

[2009] NSWCA 426

New South Wales

Court of Appeal

CITATION:	CSR LTD v AMACA PTY LTD (No 2) [2009] NSWCA 426
HEARING DATE(S):	On the papers
JUDGMENT DATE:	23 December 2009
JUDGMENT OF:	Allsop P at 1; Hodgson JA at 13; Basten JA at 1
DECISION:	1. Vary order 2(b) made on 19 October 2009 to "cross-claimant pay the costs of the cross-defendants of the proceedings in the Dust Diseases Tribunal on the cross-claim on a party/party basis up to 30 November 2007 and on an indemnity basis from 1 December 2007". 2. Each party should bear its own costs of the motion dated and filed 2 November 2009.
CATCHWORDS:	COSTS - no question of principle
CATEGORY:	Consequential orders
CASES CITED:	CSR Ltd v Amaca Pty Ltd [2009] NSWCA 338 Ettingshausen v Australian Consolidated Press Limited (1995) 38 NSWLR 404 The Anderson Group Pty Ltd v Tynan Motors Pty Ltd (No 2) [2006] NSWCA 120; 67 NSWLR 706
PARTIES:	CSR Ltd (First Appellant) Midalco Pty Ltd (Second Appellant) Amaca Pty Ltd (Respondent)
FILE NUMBER(S):	CA 40315/2008
COUNSEL:	Ms JS Gleeson (First and Second Appellants) Mr J C Sheller (Respondent )
SOLICITORS:	Colin Biggers & Paisley (First and Second Appellants) DLA Phillips Fox (Respondent )

LOWER COURT JURISDICTION:	Dust Diseases Tribunal
LOWER COURT FILE NUMBER(S):	DDT 238/2001/1
LOWER COURT JUDICIAL OFFICER:	Curtis J
LOWER COURT DATE OF DECISION:	25 June 2008
LOWER COURT MEDIUM NEUTRAL CITATION:	Amaca Pty Ltd v CSR Limited [2008] NSWDDT 18

40315/2008

ALLSOP P
HODGSON JA
BASTEN JA

23 December 2009

CSR LTD v AMACA PTY LTD (NO 2)

Costs Judgment

1 ALLSOP P and BASTEN JA: On 19 October 2009, the Court delivered judgment in this matter: [2009] NSWCA 338. CSR and Midalco seek an order that Amaca pay its costs in the Dust Diseases Tribunal on an indemnity basis.

2 The application is based on a number of so-called Calderbank letters sent to Amaca after it commenced its cross-claim against CSR and Midalco on 25 November 2003.

3 The first two letters were sent on 12 December 2003 and were sent on behalf of CSR and Midalco individually. The offer from each was to pay its own costs if judgment was entered in its favour. The offers were open until 9 January 2004.

4 The third letter was sent on 4 May 2007 on behalf of both CSR and Midalco. The same offer was made. The offer was open to 1 June 2007.

5 The fourth was sent on 2 November 2007 on behalf of both. The same offer was made. The offer was open until 30 November 2007.

6 There is no evidence of relevant costs having been incurred by CSR and Midalco until 2 November 2007, at which time, the evidence reveals, $38,420.90 in costs had been incurred.

7 The matter was heard in the Dust Diseases Tribunal in March, April and June 2008.

8 It is undoubted that the discretion lies with the Court to award indemnity costs where Calderbank letters have been sent. Relevant to the exercise of that discretion is the question whether the offer involves a real and genuine compromise: The Anderson Group Pty Ltd v Tynan Motors Pty Ltd (No 2) [2006] NSWCA 120; 67 NSWLR 706 at 708 [8] and [10].

9 There is no evidence that the first three letters embodied any degree of compromise. By November 2007, however, a not insubstantial body of costs had been expended on a case for which (as the solicitors for CSR and Midalco made clear, at least in November 2007) the evidence was inadequate to found a duty of care. The compromise involved in this letter may be seen to relate to the entire controversy from its commencement: cf Ettingshausen v Australian Consolidated Press Limited (1995) 38 NSWLR 404. In our view, however, CSR and Midalco should obtain the advantage of the letter of November 2007 only from the making of the compromise within it. Thus, in our view, Amaca should pay the costs of CSR and Midalco in the Tribunal on an indemnity basis from 1 December 2007. There was a genuine offer of compromise of not insubstantial costs.

10 We would vary order 2(b) made on 19 October 2009 to the effect that the “cross-claimant pay the costs of the cross-defendants of the proceedings in the Dust Diseases Tribunal on the cross-claim on a party/party basis up to 30 November 2007 and on an indemnity basis from 1 December 2007”.

11 CSR and Midalco have been successful only in part. They are not entitled to indemnity costs by reason of the earlier letters. Each party should bear its own costs of the motion dated and filed on 2 November 2009.

Having regard to the majority decision on the appeal in this case, I agree with Allsop P and Basten JA.

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