CITATION: Rickard Constructions v Rickard Hails Moretti & Ors [2005] NSWSC 481
HEARING DATE(S): 7 April 2005
JUDGMENT DATE :
27 May 2005JURISDICTION: Technology & Construction List
JUDGMENT OF: McDougall J at 1
DECISION: See paras [51] and [52] of judgment
CATCHWORDS: COSTS - application for indemnity costs - where third defendant sent Calderbank letter and made separate offer of compromise prior to trial - whether Calderbank offer was reasonable - whether rejection of offer was unreasonable - where reasonableness determined objectively - no question of principle
LEGISLATION CITED: Supreme Court Rules Pt 22, Pt 52A, r 22
CASES CITED: Calderbank v Calderbank [1976] Fam 93
GIO General Ltd v ABB Installation and Service Pty Ltd [2000] NSWCA 118
Jones v Bradley (No 2) [2003] NSWCA 258
Leichhardt Municipal Council v Green [2004] NSWCA 341
Oshlack v Richmond River Council (1998) 193 CLR 72
SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323PARTIES: Rickard Constructions Pty Limited (Plaintiff)
Rickard Hails Moretti Pty Limited (First Defendant)
Jeffery & Katauskas Pty Limited (Second Defendant)
Allianz Australia Insurance Limited (Third Defendant)FILE NUMBER(S): SC 55027/00
COUNSEL: F C Corsaro SC/T G R Parker (Plaintiff)
S R Donaldson SC/P S Braham (First Defendant)
M Dempsey SC/J Steele (Second Defendant)
A S Martin SC/A J McInerney (Third Defendant)SOLICITORS: Maurice Blackburn Cashman (Plaintiff)
Moray & Agnew (First Defendant)
Colin Biggers & Paisley (Second Defendant)
Moroney Betts (Third Defendant)
LOWER COURT JURISDICTION:
Index
Para
Events leading up to the application 3 Relevant principles 11 The parties’ submissions 18 Analysis 27 Conclusion 50 Order 51
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
TECHNOLOGY AND CONSTRUCTION LIST
McDOUGALL J
27 May 2005
- RICKARD HAILS MORETTI PTY LTD & ORS
JUDGMENT - ON THIRD DEFENDANT’S APPLICATION FOR INDEMNITY COSTS
1 HIS HONOUR: I gave judgment in these proceedings on 17 December 2004, in which I found for each of the defendants on the plaintiff’s claim. I made orders on 7 April 2005 to reflect my conclusions. Among other things, I ordered the plaintiff (Rickard Constructions) to pay the costs of the third defendant (Allianz).
2 Allianz sought an order that its costs be paid on an indemnity basis from 13 March 2003 and on a party and party basis prior to that date. I reserved that question for further argument, and directed Rickard Constructions and Allianz to put in written submissions. They agreed that I could decide the claim for indemnity costs upon the basis of those written submissions. This I now do.
Events leading up to the application
3 On 3 February 2003, an order was made by consent that Rickard Constructions pay into Court as security $50,000. That was done on 28 February 2004.
4 It appears that there was a mediation on 3 March 2003. That mediation did not lead to a settlement.
5 On 13 March 2003, Allianz made an offer to Rickard Constructions to compromise the claim…
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- Case
- [2005] NSWSC 481
- Decision Date
CaseChat Overview and Summary
The court considered the principles governing indemnity costs and the application of the Calderbank principle. The court acknowledged that the Calderbank offer was an attempt to settle the dispute and avoid the costs and risks associated with litigation. The court emphasised that the reasonableness of the offer was to be assessed objectively, based on the information available at the time of the offer, and without regard to the outcome of the litigation. The court also noted that the rejection of a Calderbank offer could potentially lead to an order for indemnity costs if the rejection was found to be unreasonable.
After carefully considering the evidence and the arguments presented by both parties, the court found that the Calderbank offer was reasonable. The court also determined that Rickard Constructions' rejection of the offer was not unreasonable, given the circumstances of the case. Consequently, the court dismissed the application for indemnity costs. The court emphasised that the decision was based on the specific facts and circumstances of the case, and did not establish a new principle of law.
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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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