Superb Build Pty Ltd v Petrosyan (No 2) - [2023] NSWDC 198

District Court

New South Wales

Medium Neutral Citation: Superb Build Pty Ltd v Petrosyan (No 2) [2023] NSWDC 198
Hearing dates: On the papers
Date of orders: 13 June 2023
Decision date: 13 June 2023
Jurisdiction: Civil
Before: Andronos SC DCJ
Decision:
(1) The defendants’ motion of 2 March 2023 is dismissed.
(2) The defendants are to pay the plaintiff’s costs of the motion of 2 March 2023 as agreed or assessed on the ordinary basis.

Catchwords:
COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers
COSTS — Party/Party — Bases of quantification — Factors relevant to the court’s discretion when quantifying costs – Indemnity basis

Legislation Cited:
Civil Procedure Act2005 (NSW), s 98
Legal Profession Uniform Law (NSW), s 172
Uniform Civil Procedure Rules 2005, Pt 42, r 42.1, r 42.2, r 42.5

Cases Cited:
Alves v Patel [2005] NSWSC 841
Bell v Hartnett Lawyers (No 2) [2021] NSWSC 1270
Bobb v Wombat Securities Pty Ltd & Ors (No 2) [2013] NSWSC 863
Calderbank v Calderbank [1975] 3 All ER 333
Commonwealth of Australia v Gretton [2008] NSWCA 117
Fried v National Australia Bank [2001] FCA 1280
Harrison & Anor v Schipp Cameron & Anor v Schipp [2001] NSWCA 13
Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213
Horseshoe Pastoral Company Pty Ltd v Murray Smith (trading as South Coast Tile & Slate Company) (Court of Appeal (NSW), 7 November 1995, unrep)
Huntsman Chemical Co Australia Ltd v International Pools Australia Pty Ltd (1995) 36 NSWLR 242; (1995) 125 FLR 151
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
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Superb Build Pty Ltd v Petrosyan [2023] NSWDC 2

Texts Cited:
G Dal Pont, The Law of Costs (3rd ed, 2013, Lexis Nexis Australia)

Category: Costs
Parties: Superb Build Pty Ltd (plaintiff/respondent to notice of motion)
Eric Petrosyan and Yeranuchi Petrosyan (defendants/applicants on notice of motion)
Representation:
Counsel:
Mr G McDonald (plaintiff/respondent to notice of motion)
Mr M Auld (defendants/applicants on notice of motion)
Solicitors:
Rostron Carlyle Rojas Lawyers (plaintiff/respondent to notice of motion)
William Cotsis & Associates (defendants/applicants on notice of motion)

File Number(s): 2022/00266838
Publication restriction: None

JUDGMENT

On 16 February 2023 I stayed the enforcement of judgment in these proceedings, any garnishee orders against the defendants and any writ of levy against the property of the defendants pending the hearing of District Court proceedings 2022/360925 (“the Related Proceedings”) or otherwise ordered: Superb Build Pty Ltd v Petrosyan [2023] NSWDC 2 (“my principal judgment”). I ordered that, as the defendants were successful, the plaintiff/respondent was to pay their costs.
By Notice of Motion dated 2 March 2023, the defendants/applicants seek that their costs be paid on an indemnity basis pursuant to r 42.5 of the Uniform Civil Procedure…

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: [2023] NSWDC 198
Decision Date: 13 June 2023

CaseChat Overview and Summary

Superb Build Pty Ltd brought an action against Petrosyan, seeking a declaration regarding the ownership of a property and an order for specific performance of a contract for sale of land. The matter was heard in the Supreme Court of New South Wales. The defendants, Petrosyan, made an offer of compromise on 2 March 2023, which the plaintiff did not accept. Following the dismissal of their appeal, Petrosyan made a motion seeking orders that the plaintiff pay the defendants' costs of the motion on an indemnity basis, arguing that the offer of compromise was a Calderbank offer and should be taken into account in the assessment of costs.

The primary legal issue before the court was whether the offer of compromise made by Petrosyan constituted a Calderbank offer, entitling them to indemnity costs if the plaintiff’s appeal was unsuccessful. The court also needed to determine the appropriate basis for assessing costs if the offer was found to be a Calderbank offer, as well as the factors relevant to the court’s discretion when quantifying costs on an indemnity basis.

The court found that the offer of compromise did not meet the criteria to be considered a Calderbank offer, as it did not contain a clear indication that no further costs would be incurred if the offer was not accepted. Consequently, the defendants were not entitled to indemnity costs. The court further considered the factors relevant to its discretion in quantifying costs on an indemnity basis, including the nature of the litigation, the conduct of the parties, and the overall outcome. Ultimately, the court decided that the defendants were to pay the plaintiff’s costs of the motion as agreed or assessed on the ordinary basis.

In light of the court's findings, the defendants' motion was dismissed, and the defendants were ordered to pay the plaintiff’s costs of the motion of 2 March 2023 as agreed or assessed on the ordinary basis.

Orders

Orders of the court

(1) The defendants’ motion of 2 March 2023 is dismissed.

(2) The defendants are to pay the plaintiff’s costs of the motion of 2 March 2023 as agreed or assessed on the ordinary basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Superb Build Pty Ltd v Petrosyan (No 2) [2023] NSWDC 198
Hearing dates:	On the papers
Date of orders:	13 June 2023
Decision date:	13 June 2023
Jurisdiction:	Civil
Before:	Andronos SC DCJ
Decision:	(1) The defendants’ motion of 2 March 2023 is dismissed. (2) The defendants are to pay the plaintiff’s costs of the motion of 2 March 2023 as agreed or assessed on the ordinary basis.
Catchwords:	COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers COSTS — Party/Party — Bases of quantification — Factors relevant to the court’s discretion when quantifying costs – Indemnity basis
Legislation Cited:	Civil Procedure Act2005 (NSW), s 98 Legal Profession Uniform Law (NSW), s 172 Uniform Civil Procedure Rules 2005, Pt 42, r 42.1, r 42.2, r 42.5
Cases Cited:	Alves v Patel [2005] NSWSC 841 Bell v Hartnett Lawyers (No 2) [2021] NSWSC 1270 Bobb v Wombat Securities Pty Ltd & Ors (No 2) [2013] NSWSC 863 Calderbank v Calderbank [1975] 3 All ER 333 Commonwealth of Australia v Gretton [2008] NSWCA 117 Fried v National Australia Bank [2001] FCA 1280 Harrison & Anor v Schipp Cameron & Anor v Schipp [2001] NSWCA 13 Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 Horseshoe Pastoral Company Pty Ltd v Murray Smith (trading as South Coast Tile & Slate Company) (Court of Appeal (NSW), 7 November 1995, unrep) Huntsman Chemical Co Australia Ltd v International Pools Australia Pty Ltd (1995) 36 NSWLR 242; (1995) 125 FLR 151 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 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Superb Build Pty Ltd v Petrosyan [2023] NSWDC 2
Texts Cited:	G Dal Pont, The Law of Costs (3rd ed, 2013, Lexis Nexis Australia)
Category:	Costs
Parties:	Superb Build Pty Ltd (plaintiff/respondent to notice of motion) Eric Petrosyan and Yeranuchi Petrosyan (defendants/applicants on notice of motion)
Representation:	Counsel: Mr G McDonald (plaintiff/respondent to notice of motion) Mr M Auld (defendants/applicants on notice of motion) Solicitors: Rostron Carlyle Rojas Lawyers (plaintiff/respondent to notice of motion) William Cotsis & Associates (defendants/applicants on notice of motion)
File Number(s):	2022/00266838
Publication restriction:	None