Global Consulting Services Pty Ltd v Gresham Property Investments Ltd (No 2)

Global Consulting Services Pty Ltd (the appellants) and Gresham Property Investments Ltd (the first respondent) were parties to litigation concerning the distribution of a fund. The dispute involved unresolved questions regarding the extent of priority creditors and the quantum of future distributions, as well as the determination of receivers' fees. The appellants, having been successful in obtaining declaratory relief as to the distribution of the fund, sought to recover their costs.

The primary legal issue before the Court of Appeal was the appropriate order for costs, particularly in light of a *Calderbank* offer made by the appellants. The appellants argued that their *Calderbank* offer, which related to only a small proportion of their total costs, should influence the costs order. The respondent contended that the ongoing uncertainty surrounding the fund's distribution and the unresolved issues of priority creditors and receivers' fees meant that an ordinary costs order should be made.

The Court of Appeal determined that while the appellants had achieved success, the unresolved nature of certain aspects of the fund's distribution warranted a nuanced approach to costs. The Court set aside the previous order regarding costs and made new orders. The first respondent was ordered to pay the appellants' costs at first instance and their costs of the appeal up to and including 10 August 2018 on the ordinary basis.

Further, the Court ordered that the appellants' costs of the appeal from 11 August 2018 be heard and determined by a single Judge of Appeal on the papers. This approach acknowledged the appellants' success while allowing for further consideration of costs in light of the ongoing developments in the distribution of the fund.