Illawarra Hotel Company Pty Limited v Walton Construction Pty Limited

[2014] HCASL 220

ILLAWARRA HOTEL COMPANY PTY LIMITED

v

WALTON CONSTRUCTION PTY LIMITED

[2014] HCASL 220
S106/2014

1. The applicant and the respondent each obtained a money judgment, including an interest component, against the other in proceedings in the Supreme Court of New South Wales.  Each party also obtained the benefit of a costs order against the other.      

2. On appeal to the Court of Appeal of the Supreme Court of New South Wales, the applicant, although largely unsuccessful, obtained a modest adjustment of the judgment sum in its favour.  Provision was made for a set-off of the respective judgment sums, leaving a balance, after set-off, of $276,957.54 payable by the applicant to the respondent.   

3. The applicant sought an order in the Court of Appeal that the costs awarded to it at first instance be assessed on an indemnity basis in accordance with the principles in Calderbank v Calderbank [1976] Fam 93. The applicant claimed that it was entitled to have its costs assessed on an indemnity basis because the respondent had previously rejected two offers by the applicant to settle the whole of the proceedings for a payment of $260,000 plus costs to the respondent, save for the costs of interlocutory applications in respect of which it had already been decided that each party should bear its own costs.

4. The Court of Appeal refused to order indemnity costs, finding that, at the time the settlement offers were made, the case had not assumed sufficient of its ultimate shape to warrant a conclusion that the respondent's rejection of the offers was unreasonable.  The Court of Appeal affirmed this view when dismissing a subsequent notice of motion, filed by the applicant, seeking leave to make submissions in support of re-opening the Court's decision.

5. The applicant seeks special leave to appeal and requires an enlargement of time for the filing of its application for special leave to appeal to this Court.  We would grant an enlargement of time but would refuse special leave to appeal.  The decision of the Court of Appeal involves an exercise of discretion on a matter of practice and procedure, and was determined in accordance with well-settled principles.  An appeal to this Court would enjoy insufficient prospects of success to warrant a grant of special leave.

6. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

V.M. Bell
10 December 2014 S.J. Gageler