Value Constructions Pty Ltd v Badra (No 2)

In *Value Constructions Pty Ltd v Badra (No 2)*, the Court of Appeal of New South Wales considered an application for indemnity costs following an appeal. The dispute concerned the appellant's liability to the first respondent, and the second and third respondents' involvement in the proceedings.

The primary legal issues before the Court were whether the first respondent's offer of compromise, which was not accepted by the appellant, constituted a *Calderbank* offer that warranted an award of indemnity costs, and whether the active role of the second and third respondents in the appeal was appropriate and useful.

The Court held that the first respondent's offer did not demonstrate a "real and genuine element of compromise" sufficient to justify indemnity costs. The Court assessed the degree of compromise cumulatively and found no explanation for significant costs asserted to have been incurred before the exchange of submissions. Consequently, the Court determined that the first respondent should not gain an advantage from a consensus that was later broken to alter the precise sums awarded. The Court also found that the second and third respondents had played an active role that was both appropriate and useful to the Court.

Accordingly, the Court ordered that the appellant pay the first respondent's costs of the appeal, with the exception that the first respondent was to pay the appellant's costs of his application for indemnity costs. The appellant was also ordered to pay the second and third respondents' costs of the appeal.