Elan Boulevard Pty Ltd v Fnyn Investments Pty Ltd and Ors (No.2)

Elan Boulevard Pty Ltd brought an action against Fnyn Investments Pty Ltd and others, seeking damages for alleged breaches of contract. The case was heard in the Supreme Court of Queensland. The primary dispute centred on the interpretation and enforcement of contractual obligations, with Elan Boulevard claiming that the defendants failed to fulfil certain conditions outlined in a property development agreement.

The legal issues before the court included whether the plaintiff’s offer to settle the proceedings prior to the trial, under the principles established in Calderbank v Calderbank, warranted an adjustment in the costs order. Specifically, the court needed to determine if the plaintiff’s costs should be assessed on a standard or indemnity basis, considering that the plaintiff's offer to settle was not more favourable than the judgment obtained at trial.

The court held that despite the plaintiff’s success at trial, the defendants' refusal to accept the Calderbank offer warranted a costs order on an indemnity basis from the date the offer was made. The reasoning was that the refusal to accept a potentially more advantageous settlement could not be justified, and thus, the plaintiff should not bear the costs of the proceedings from that date onwards. The court balanced the need for fair resolution with the deterrence of unreasonable refusals to settle.

The court’s final orders included a judgment in favour of Elan Boulevard on its claim, dismissal of the defendants’ counterclaim, and a payment of damages. Additionally, the defendants were ordered to pay the plaintiff’s costs, assessed on a standard basis until the date of the Calderbank offer and on an indemnity basis thereafter.