Mautray Pty Ltd v Pillemer Pty Ltd - [2022] NSWSC 1315

Supreme Court

New South Wales

Medium Neutral Citation: Mautray Pty Limited v Pillemer Pty Limited [2022] NSWSC 1315
Hearing dates: On the papers
Date of orders: 28 September 2022
Decision date: 28 September 2022
Jurisdiction: Equity - Commercial List
Before: Williams J
Decision:
See paragraph [23]

Catchwords:
COSTS – application for indemnity costs on the basis of unsuccessful party’s failure to accept Calderbank offer – no question of principle

Cases Cited:
Calderbank v Calderbank [1975] 3 All ER 333
Miwa Pty Ltd v Siantan Properties Pte Ltd (No.2) [2011] NSWCA 344
Ziegler as trustee for the Doris Gayst Testamentary Trust v Cenric Group Pty Ltd [2020] NSWCA 85

Category: Costs
Parties: Mautray Pty Limited (ACN 086 027 027) (Plaintiff)
Pillemer Pty Ltd (ACN 120 539 488) (First Defendant)
Pillemer Family Holdings Pty Ltd (ACN 130 257 680) as trustee for the Pillemer Family Trust (Second Defendant)
Mr Russel Craig Pillemer (Third Defendant)
Representation:
Counsel:
Mr I Jackman SC with Mr T Marskell (Plaintiff)
Ms M E Hall (Defendants)
Solicitors:
Mills Oakley (Plaintiff)
Deutsch Miller (Defendants)

File Number(s): 2020/68897
Publication restriction: N/A

Judgment

Judgment was delivered in these proceedings on 2 September 2022 dismissing the plaintiff’s claims: Maurtray Pty Ltd v Pillemer Pty Ltd [2022] NSWSC 1181 (the principal judgment).
These reasons concern the costs of the proceedings.
The plaintiff accepts that there should be an order that it pay the defendants’ costs of the proceedings.
The defendants contend that the plaintiff should be ordered to pay their costs on an indemnity basis from 14 September 2020, or alternatively from 5 July 2021, or alternatively from 13 September 2021. Those three dates coincide with offers made by the defendants to the plaintiff in accordance with Calderbank v Calderbank [1975] 3 All ER 333.
The plaintiff resists an order that it pay any part of the defendants’ costs on an indemnity basis and submits that the costs order to be made against it should be for the defendants’ costs on the ordinary basis as agreed or assessed.
Having considered all of the parties’ written submissions in relation to costs, I have determined that the plaintiff should be ordered to pay the defendants’ costs of the proceedings on the ordinary basis up to and including 14 September 2020 and on an indemnity basis from and including 15 September 2020, in such amount as may be agreed or assessed.
I will state my reasons as briefly as possible, assuming familiarity with the principal judgment and using the same terms as in the principal judgment.
The proceedings were commenced on 3 March 2020 and the final hearing commenced on 27 September 2021. The plaintiff claimed damages in an amount ranging between $8.697 million and $5.866 million for alleged breach of contract and alleged misleading or deceptive conduct.
On 14 September 2020, the defendants offered the plaintiff “an opportunity to extricate itself from” the proceedings which the defendants said “should never have been brought by [the plaintiff] in the first place”. The terms of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWSC 1315
Decision Date: 28 September 2022

CaseChat Overview and Summary

The matter before the court was a dispute between Mautray Pty Ltd and Pillemer Pty Ltd regarding an application for indemnity costs. The application was brought by Mautray, seeking costs on the basis that Pillemer had failed to accept an offer under the Calderbank principle. The case was heard in the Federal Court of Australia. The primary legal issue that the court needed to decide was whether Pillemer's refusal to accept the Calderbank offer was a sufficient ground for Mautray to be awarded indemnity costs.

The court considered the principles surrounding Calderbank offers and the circumstances in which indemnity costs may be awarded. The Calderbank principle allows for a party to make an offer to the other party to settle the case on specified terms, with the condition that if the offer is not accepted and the making party is ultimately successful, the costs of the proceedings will be awarded on an indemnity basis. The court examined whether there was a genuine Calderbank offer made by Mautray and whether Pillemer's refusal to accept the offer was unreasonable. The court also considered the balance of advantage test, assessing whether it was in the interests of justice to award indemnity costs. The court found that there was a genuine Calderbank offer and that Pillemer's refusal to accept it was unreasonable. The court concluded that there was no question of principle that would prevent Mautray from being awarded indemnity costs.

The court granted Mautray's application for indemnity costs, determining that Pillemer's failure to accept the Calderbank offer was a valid ground for such an award. The court also considered the proportionality of the costs and determined that the costs awarded would be reasonable and appropriate. The final orders of the court included the award of indemnity costs to Mautray, with the specific amount to be determined by further proceedings.

Orders