Cushman and Wakefield (NSW) Pty Ltd v Farrell (No 2)

This matter concerned an appeal and cross-appeal from a judgment of the primary judge. The appellant, Cushman and Wakefield (NSW) Pty Ltd, sought to appeal orders made in favour of the respondent, Farrell, in proceedings concerning a claim for commission. The respondent cross-appealed in relation to certain aspects of the primary judge's decision.

The Court of Appeal was required to determine the appropriate orders for costs in both the appeal and the proceedings at first instance. Specifically, the court considered whether the general rule that costs follow the event should apply, and whether it would be unjust for the unsuccessful respondent to bear the costs of the proceedings given the court's reasoning. The court also had to consider the impact of a Calderbank offer made in the first instance proceedings and an offer of compromise made in relation to the appeal, particularly in relation to the award of indemnity costs. Finally, the court addressed the issue of interest on moneys paid by the appellant to the respondent in respect of the judgment at first instance.

The Court of Appeal ordered that the respondent pay the appellant's costs of and incidental to the amended statement of claim on the ordinary basis, excluding costs of the cross-claim. Regarding the appeal, the respondent was ordered to pay 80% of the appellant's costs on the ordinary basis up to a specified date, and on the indemnity basis thereafter. The court found that the offer of compromise in relation to the appeal was no less favourable to the appellant than the outcome of the appeal, and that the rejection of the Calderbank offer in the first instance proceedings was not unreasonable. The court also ordered the respondent to pay the appellant specific sums paid by the appellant to the respondent and its solicitors, with interest calculated in accordance with section 100 of the Civil Procedure Act 2005 (NSW). Each party was ordered to bear its own costs of submissions made in relation to consequential orders.