In the matter of Zamora Homes Pty Limited (in liquidation) and others

Zamora Homes Pty Limited was in liquidation, and various parties were involved in proceedings in the Supreme Court of New South Wales. The primary dispute centred around the allocation of costs following the dismissal of proceedings. The applicants sought costs on an indemnity basis, arguing that the delay in filing a pleading was attributable to the respondent, and that the proceedings were not unreasonably conducted. Additionally, the applicants claimed that a Calderbank offer was made, which, though complex and introducing uncertainties, was reasonable to not accept.

The court was required to determine several legal issues, including whether the applicant should be liable for the respondent's costs given the proceedings were dismissed by consent, the application for indemnity costs due to late filing of a pleading, and the nature of the offer of compromise under Rule 20.26 of the Uniform Civil Procedure Rules 2005 (NSW). The court also needed to assess whether it was unreasonable for the applicants not to accept the Calderbank offer.

The court found that the general rule that costs follow the event applied, and given the proceedings were dismissed by consent, the applicant should pay the respondent’s costs. The delay in filing a pleading was attributed to the applicant, and although the proceedings were not unreasonably conducted, the court held that indemnity costs were appropriate. Regarding the Calderbank offer, the court considered it complex and introducing uncertainties, concluding it was not unreasonable for the applicants not to accept it.

The court ordered that the applicant pay the respondent's costs on an indemnity basis, taking into account the factors mentioned above. The court's decision was based on the procedural delays, the nature of the proceedings, and the circumstances surrounding the Calderbank offer.