Sim Development Pty Ltd v Greenvale Property Group Pty Ltd (No 2)

The matter before the court involved a dispute between Sim Development Pty Ltd and Greenvale Property Group Pty Ltd, with a counterclaim also filed by Greenvale. The primary focus of the case was the determination of costs associated with the proceedings. The initial judgment delivered on 16 June 2017 established that Sim Development was owed $153,260 under the Sim Consultancy and Management Agreement, while Greenvale was entitled to $20,000 for its counterclaim regarding the substation. The Caveat Proceeding was dismissed. Sim Development sought its costs and the costs of the counterclaim on the standard basis, while Mr Cai, a defendant to the counterclaim, also sought costs. Sim Development further sought indemnity costs for the Caveat Proceeding. Greenvale argued that it was entitled to indemnity costs from 17 September 2016 due to Sim Development's refusal to accept its Calderbank offers, which Greenvale considered reasonable. Greenvale accepted liability for costs on the standard basis up until 16 September 2016.

The legal issues before the court involved determining whether the Calderbank offers were capable of acceptance, whether they were reasonable, and whether Greenvale had a presumptive entitlement to indemnity costs. The Calderbank offers made by Greenvale and Sim Development had to be examined in detail to assess their reasonableness and the implications of their acceptance or rejection. Greenvale’s first offer, made on 9 September 2016, proposed settling all disputes for $270,000 inclusive of costs, which Sim Development did not accept. Sim Development responded with its own offer on 23 September 2016, which Greenvale also rejected. Greenvale restated its initial offer on 26 September 2016 and 18 November 2016, providing detailed reasons for its stance. The court had to determine the validity of these offers and their impact on the costs order.

The court examined the Calderbank offers in detail and found that Greenvale's offers were reasonable and capable of acceptance. However, Sim Development's refusal to accept these offers did not entitle Greenvale to indemnity costs. The court held that Greenvale was not presumptively entitled to indemnity costs from 17 September 2016. Instead, the court ordered that Greenvale pay Sim Development’s costs on the standard basis up to 16 September 2016. For costs after 22 February 2016, the court ruled that no costs order should be made. This outcome balanced the reasonable nature of Greenvale’s offers against the lack of a presumptive entitlement to indemnity costs.