Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2)

In *Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2)*, the New South Wales Court of Appeal considered an appeal concerning costs. The appellant, Miwa Pty Ltd, sought to appeal a decision regarding costs awarded in earlier proceedings. The first respondent was Siantan Properties Pte Ltd.

The primary legal issue before the Court of Appeal was whether a pre-trial offer made by the appellant, which had expired and was not renewed, should be considered by the Court in exercising its discretion regarding the costs of the appeal. A further issue was the construction of this offer, particularly in light of its failure to comply with the requirements of Uniform Civil Procedure Rules 2005 (NSW) r 20.26, and whether it was unreasonable for the respondent to refuse the offer.

The Court held that the expired and unrenewed offer was not significant in determining the costs of the appeal. The judges reasoned that an offer made pre-trial and limited in time, without express reference to the possibility of an appeal, could not reasonably be interpreted as encompassing the costs of an appeal. They also considered that the offer involved a capitulation without requiring the offeror to pay the costs incurred up to that point, and that the respondent’s refusal was not unreasonable given the positive prospects of success in defending the proceedings. Consequently, the Court found no reason to depart from the usual order that costs follow the event for the proceedings below.

The Court of Appeal dismissed the appellant's motion and ordered the appellant to pay the first respondent's costs of the motion.