SUPREME COURT OF QUEENSLAND
CITATION:
J & D Rigging Pty Ltd v Agripower Australia Limited & Ors [2014] QCA 23
PARTIES:
J & D RIGGING PTY LTD
ACN 075 350 140
(appellant)
v
AGRIPOWER AUSTRALIA LIMITED
ACN 123 823 226
(first respondent)
ADJUDICATE TODAY PTY LIMITED
ACN 109 605 021
(second respondent)
HELEN DURHAM
(third respondent)FILE NO:
Appeal No 6662 of 2013
SC No 2128 of 2013DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal – Further Orders
ORIGINATING COURT:
Court of Appeal
DELIVERED ON:
21 February 2014
DELIVERED AT:
Brisbane
HEARING DATE:
Heard on the papers
JUDGES:
Holmes JA and Applegarth and Boddice JJ
Judgment of the CourtFURTHER ORDERS:
The order for costs made in paragraph 3 of the orders pronounced on 20 December 2013 should be confirmed with the addition of the words “to be assessed on the standard basis”.1.
The first respondent pay the appellant’s costs of and incidental to the appeal to be assessed on the standard basis up to and including 20 December 2013.2.
The appellant pay the first respondent’s costs of and incidental to the submissions on costs filed on 31 January 2014 and 7 February 2014.3.
CATCHWORDS:
PROCEDURE – COSTS – INDEMNITY COSTS – where prior to the original hearing Calderbank offer made to the applicant, which was not accepted – where the respondent was unsuccessful at first instance – where the respondent to that application was successful on appeal – whether the decision to reject the Calderbank offer was unreasonable or imprudent – whether the applicant is entitled to costs on the indemnity basis
Edelbrand Pty Ltd v HM Australia Holdings Pty Ltd (No 2) [2012] NSWCA 217, cited
Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435; [2005] VSCA 298, followed
McBride v ASK Funding Ltd[2013] QCA 130, cited
Oversea Chinese Banking Corporation v Richfield Investments Pty Ltd [2004] VSC 351, cited
Velvet Glove Holdings Pty Ltd v Mount Isa Mines Ltd[2011] QCA 312, citedCOUNSEL:
No appearance by the appellant, the appellant’s submissions were heard on the papers
No appearance by the first respondent, the first respondent’s submissions were heard on the papers
No appearance for the second and third respondentsSOLICITORS:
Boulton Cleary & Kern for the appellant
TressCox Lawyers for the first respondent
No appearance for the second and third respondents
THE COURT: The appellant was successful in its appeal.[1] The decision at first instance to declare the adjudication decision void was set aside. As a result of the appeal, the appellant has the benefit of a decision which awarded it an amount of just over $2.5 million. The first respondent accepts that costs orders ought to be made in favour of the appellant in respect of both the proceeding at first instance and the appeal, assessed on the standard basis. But the appellant seeks both its costs at first instance and on appeal to be assessed on an…
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- Case
- [2014] QCA 23
- Decision Date
CaseChat Overview and Summary
The court considered the principles governing indemnity costs in light of the Calderbank offer. It examined the circumstances under which the offer was made, the terms of the offer, and the reasoning behind the refusal. The court assessed whether the offer was fair and whether J & D Rigging had a reasonable basis for rejecting it. It found that the offer was reasonable and that the refusal was not justifiable under the circumstances. Consequently, the court held that the decision to reject the Calderbank offer was imprudent.
The court ordered that J & D Rigging was entitled to indemnity costs from Agripower. The reasoning was that the rejection of the Calderbank offer was unreasonable, and as a result, J & D Rigging should be compensated for the costs incurred in pursuing the appeal. The court emphasised that the principle of indemnity costs was intended to deter parties from rejecting reasonable settlement offers without proper justification. As a result of the court's decision, J & D Rigging was awarded indemnity costs from Agripower for the appeal proceedings.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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