Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Mega-top Cargo Pty Ltd v Moneytech Services Pty Ltd [2016] NSWCA 3 Hearing dates: 16 December 2015 Decision date: 03 February 2016 Before: Gleeson JA; Leeming JA; Emmett AJA Decision: Application to vary costs orders refused.
Catchwords: COSTS – offer of compromise – “walk-away” offer – no significant compromise – no basis for special costs order Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.15A, 51.47, 51.48 Cases Cited: Calderbank v Calderbank [1976] Fam 93
Taheri v Vitek (No 2) [2014] NSWCA 344Category: Costs Parties: Mega-top Cargo Pty Ltd (Appellant)
Moneytech Services Pty Ltd (Respondent)Representation: Counsel:
Solicitors:
T Hall, solicitor (Appellant)
C D Wood (Respondent)
Hall Partners (Appellant)
Berry Buddle Wilkins Lawyers (Respondent)
File Number(s): 2015/151853 Publication restriction: Nil Decision under appeal
- Court or tribunal:
- District Court of New South Wales
- Jurisdiction:
- Civil
- Date of Decision:
- 30 April 2015
- Before:
- Olsson DCJ
- File Number(s):
- 2014/245779
Judgment
-
THE COURT: On 16 December 2015, this Court dismissed the appeal with costs. When judgment was delivered, Moneytech made an oral application for that order to be varied, by reason of an offer of compromise made by it on 26 October 2015. The compromise offered was that the appeal be dismissed with no order as to costs. The letter enclosing that offer of compromise advised that if the offer was not found to be a valid offer of compromise, then it was to be considered as an offer made in accordance with the principles in Calderbank v Calderbank [1976] Fam 93. The letter concluded:
“In the event that your client does not accept our client’s offer for settlement, we propose to tender this letter in support of an application that our client be entitled to its costs to date on the indemnity basis.”
-
Moneytech submitted that the offer was a valid offer of compromise, such that it was entitled to a more favourable costs order. Mega-top submitted that the offer amounted to “capitulation” and did not warrant disturbing the existing costs order. Neither sought to be heard in writing or to tender any evidence beyond the offer and the letter which enclosed it.
-
The offer of compromise made by Moneytech was open for a period of 28 days, and complied with the rules: see Uniform Civil Procedure Rules 2005 (NSW), r 20.26(3)(a). There was no evidence to suggest that Moneytech had, by 26 October 2015, incurred any significant costs in defending the appeal. Its written submissions, which ultimately were nine paragraphs occupying just over two pages, signed by counsel who had appeared at trial, had not even been filed. They were filed two days later, on 28 October 2015.
-
Part 42, r 42.15A applies where an offer is made by a defendant, but not accepted by the plaintiff, and the defendant obtains an order or judgment on the claim no less favourable to the defendant than the terms of the offer. Part 51, r 51.47 makes that rule…
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- Case
- [2016] NSWCA 3
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court of Appeal was whether the respondent's offer of compromise, described as a "walk-away" offer, constituted a "better outcome" for the respondent than the judgment obtained, thereby entitling the respondent to special costs orders. The Court was required to determine if the offer was a genuine compromise or if it was so one-sided as to lack the characteristics of a compromise for the purposes of the relevant costs rules.
The Court held that the offer of compromise was not a genuine compromise because it did not involve any significant concession by the respondent. It was a "walk-away" offer that required the applicant to take no further action and pay the respondent's costs, which the Court found to be an unreasonable demand. The Court applied the principle that an offer of compromise must demonstrate a willingness to compromise and achieve a resolution that is better for the offeror than the ultimate judgment. As the offer did not meet this threshold, the Court found no basis for varying the original costs orders.
The application to vary the costs orders was refused.
Orders
Orders of the court
Application to vary costs orders refused.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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