Ssabr Pty Ltd v AMA Group Ltd (No 2) - [2024] NSWSC 24

Supreme Court

New South Wales

Medium Neutral Citation: SSABR Pty Ltd v AMA Group Ltd (No 2) [2024] NSWSC 24
Hearing dates: On the papers; last submissions 19 January 2024
Date of orders: 2 February 2024
Decision date: 02 February 2024
Jurisdiction: Equity - Commercial List
Before: Rees J
Decision:
Indemnity costs ordered from Calderbank offer.

Catchwords:
COSTS – commercial dispute – plaintiffs serve Calderbank offer on Thursday, before trial commencing on the coming Monday – defendants make Calderbank counter-offer the same day, open for acceptance until 10am on Monday – term of both offers that previous costs orders be vacated – plaintiffs lose at trial.
INDEMNITY COSTS – whether reasonable compromise given term requiring vacation of previous costs orders – whether indemnity costs appropriate where it was not necessary for the Court to determine some of the issues advanced by the plaintiffs – whether period of time for acceptance was reasonable in the circumstances.

Cases Cited:
A v Bird [2020] NSWSC 1680
Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd (No 2) [2009] NSWCA 12
Goo v Sim (No 2) [2022] NSWSC 651
In the matters of Earth Civil Australia Pty Ltd, RCG CBD Pty Ltd, Bluemine Pty Ltd, Diamondwish Pty Ltd and Rackforce Pty Ltd (all in liq) (No 2) [2021] NSWSC 1161
James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296
Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No 2) [2008] NSWCA 85
SSABR Pty Ltd v AMA Group Ltd [2023] NSWSC 1551

Category: Costs
Parties: SSABR Pty Ltd (First Plaintiff)
HAAPRC Pty Ltd (Second Plaintiff)
AMA Group Ltd (First Defendant)
AMA Group Solutions Pty Ltd (Second Defendant)
Representation:
Counsel:
Mr JA Redwood SC / Ms SK Hill (Plaintiffs)
Mr MA Robins KC / Mr S Fitzpatrick (Defendants)
Solicitors:
CBD Law (Plaintiffs)
K&L Gates (Defendants)

File Number(s): 2021/257009

JUDGMENT

HER HONOUR: I gave judgment in this matter on 15 December 2023: SSABR Pty Ltd v AMA Group Ltd [2023] NSWSC 1551. I ordered the plaintiffs to pay the defendants’ costs of the proceedings and made directions for the parties to provide affidavits and submissions in the event that any party sought a special costs order, with any such application to be determined on the papers.
I have since received submissions from the defendants, who seek costs on an indemnity basis on the basis of non-acceptance of a Calderbank letter served shortly before trial. The defendants relied on affidavits of their solicitor, Alexandra Smith. The plaintiffs opposed such an order and provided written submissions. This judgment assumes familiarity with my primary judgment; the same defined terms are used.

Facts

These proceedings commenced in September 2021. The procedural history is described by Ms Smith. The pleadings were amended from time to time. Discovery was given, challenged, and further discovery sought. The parties retained forensic accounting experts. The plaintiffs’ expert, Mr Morris, produced three reports. AMA Group’s experts, Mr Archer and Mr Hockley, produced two reports. The experts together produced a joint report.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWSC 24
Decision Date: 02 February 2024

CaseChat Overview and Summary

The plaintiffs, Ssabr Pty Ltd, filed a suit against the defendants, AMA Group Ltd, in a commercial dispute. The case reached the court for a decision on costs and indemnity costs, following the plaintiffs' loss at trial. The plaintiffs made a Calderbank offer on Thursday, prior to the trial commencing on the following Monday, which the defendants responded to with a counter-offer on the same day. Both offers contained a term requiring the vacation of previous costs orders and were open for acceptance until 10 am on the Monday. The central legal issues were whether the compromise terms rendered the offers reasonable and whether indemnity costs were appropriate given that the court did not need to determine some of the issues presented by the plaintiffs. Additionally, the court had to consider if the timeframe for acceptance of the offers was reasonable under the circumstances.

The court analysed the Calderbank offers and their terms, concluding that the requirement to vacate previous costs orders made the offers unreasonable. The court held that indemnity costs were not appropriate as the court did not need to determine all of the issues raised by the plaintiffs. The court also found that the acceptance period of the offers was reasonable, considering the short notice and the urgency of the situation. Given these findings, the court determined that the defendants were not entitled to indemnity costs.

The court ruled in favour of the plaintiffs and ordered that the defendants bear their own costs of the proceedings. This decision was based on the unreasonableness of the compromise terms in the Calderbank offers, the court's conclusion that indemnity costs were not appropriate, and the reasonableness of the acceptance period provided in the offers. The court's decision effectively denied the defendants' entitlement to indemnity costs and required them to bear their own costs.

Orders