Supreme Court
New South Wales
Medium Neutral Citation: Flynn v PPK Mining Equipment Pty Ltd (No 4) [2024] NSWSC 894 Hearing dates: 22 July 2024 Date of orders: 26 July 2024 Decision date: 26 July 2024 Jurisdiction: Equity - Commercial List Before: Rees J Decision: Defendants to pay 50% of plaintiff’s costs of proceedings until date of Calderbank offer, then plaintiffs to pay the defendants’ costs on indemnity basis.
Catchwords: COSTS – proceedings travel to Court of Appeal, application for special leave and back – plaintiff get $500,000 – apart from curious damages claim pitched at its peak at $72 million, case should have been brought in District Court – defendants spend $2.5 million defending proceedings – 80% of trial occupied by issues on which plaintiffs failed – apportionment – principles at [21]-[23] – plaintiffs entitled to 50% of their costs on a party-party basis.
CALDERBANK OFFER – defendants offer $2 million for damages and costs of three proceedings – plaintiffs contend unable to ascertain whether they did better than the offer where their costs are not known (nor disclosed) – principles at [38]-[40] –assuming plaintiffs incurred same costs as the defendants (which was obviously not the case), the offer was better than the outcome achieved – unreasonable to reject offer in the circumstances.
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) r 42.34
Cases Cited: Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304
CGU Insurance Ltd v Corrections Corporation of Australia Staff Superannuation Ltd [2008] FCAFC 173
Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219
Evans Shire Council v Richardson (No 2) [2006] NSWCA 61
Flynn v PPK Mining Equipment Pty Ltd [2023] NSWCA 201
Flynn v PPK Mining Equipment Pty Ltd (No 2) [2022] NSWSC 1640
Flynn v PPK Mining Equipment Pty Ltd (No 3) [2024] NSWSC 663
James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296
LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd (No 2) [2002] NSWSC 72
Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344
Mobis Parts Australia Pty Ltd v XL Insurance Co SE (No 2) [2019] NSWCA 19
Nu Line Construction Group Pty Ltd v Fowler (aka Grippaudo) [2012] NSWSC 816
Ryde Developments Pty Ltd v Property Investors Alliance Pty Ltd (No 2) [2018] NSWCA 40
SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323
Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No 2) (2011) 86 ACSR 119; [2011] NSWCA 256
Windsurfing International Inc v Petit [1987] AIPC 90-441
Category: Costs Parties: Daniel Flynn (First Plaintiff)
Flynfam Pty Ltd as trustee for Flynn Family Trust (Second Plaintiff)
PPK Mining Equipment Pty Ltd (First Defendant)
PPK Group Ltd (Second Defendant)Representation: Counsel:
Solicitors:
Mr AD Justice (Plaintiffs)
Mr AJ Bulley (Defendants)
MRM Lawyers (Plaintiffs)
Moray & Agnew (Defendants)
File Number(s): 2019/11615
JUDGMENT
-
HER HONOUR: This judgment concerns the costs of proceedings which began in 2019 in the Commercial List…
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- Case
- [2024] NSWSC 894
- Decision Date
CaseChat Overview and Summary
The primary legal issue was the apportionment of costs between the parties, considering the principles outlined in paragraphs [21]-[23] of the decision. The court found that the plaintiff was entitled to 50% of their costs on a party-party basis, reflecting the unsuccessful nature of their claim. Another significant issue was the evaluation of a Calderbank offer made by the defendants, which proposed a settlement of $2 million for damages and costs of three proceedings. The plaintiff argued that they could not determine if they were better off than the offer due to the undisclosed nature of their costs. The court considered the principles set out in paragraphs [38]-[40] and concluded that even if the plaintiff had incurred the same costs as the defendants, which was not the case, the offer was more advantageous than the outcome achieved. The court deemed the plaintiff's rejection of the offer unreasonable under the circumstances.
The court ordered that the plaintiff was to receive 50% of their costs on a party-party basis, reflecting the unsuccessful nature of their claim. Additionally, the court found that the plaintiff's rejection of the Calderbank offer was unreasonable, and the defendants' offer should have been accepted. As a result, the plaintiff was not entitled to any costs beyond those already awarded. The defendants were awarded their costs of the appeal, as well as the costs of the application for special leave to appeal and the subsequent application back to the Supreme Court.
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