Sapra Enterprises Pty Ltd v Cooper (No 2)

Sapra Enterprises Pty Ltd sued Cooper over a dispute involving unpaid monies. The court was tasked with determining the costs that the defendants should pay to the plaintiff following the conclusion of the trial. The plaintiff argued that it should be compensated for its legal costs on the indemnity basis from the time the defendants unreasonably pursued their defences, which were only raised after the plaintiff made a Calderbank offer. The plaintiff also claimed that the defendants should have accepted the Calderbank offer, thereby entitling the plaintiff to costs on the indemnity basis.

The court examined the nature of the defences raised and the timing of their introduction in relation to the Calderbank offer. The court determined that the defences were indeed unreasonable and only came to light post the offer, which justified the plaintiff's claim for indemnity costs from that point. However, as the unreasonable defences were not apparent before the offer, the court ruled that the costs should be calculated on the ordinary basis up to the date of the Calderbank offer, and on the indemnity basis thereafter.

Following the court's reasoning, it ordered the defendants to pay the plaintiff's costs on the ordinary basis up to the date of the Calderbank offer and on the indemnity basis thereafter. The court also considered the monies paid into court by the third defendant, which the plaintiff sought to claim under section 37A of the Conveyancing Act 1919 (NSW). The court found that the monies were effectively the property of the first defendant prior to being paid into court and were available to meet the judgment against the first defendant. Consequently, the court ordered the payment of those monies to the plaintiff.