Volvo Finance Australia Pty Limited v Waterfront Enterprises Pty. Ltd. (in liq) (No 3)

This case involved Volvo Finance Australia Pty Limited as the plaintiff and Waterfront Enterprises Pty. Ltd. (in liquidation) as the defendant. The dispute centred on whether the defendant was liable for the unpaid balance of a loan secured by a floating charge. The case was heard in the Supreme Court of New South Wales. The defendant had entered into a finance agreement with the plaintiff to purchase a truck. When the defendant defaulted on the loan, the plaintiff sought to recover the outstanding balance. The defendant argued that it was not liable for the full amount claimed.

The court had to decide whether the defendant's offers to settle the dispute were made in accordance with the principles established in Calderbank v Calderbank. Specifically, the court needed to determine if the offers were made in good faith and without any prospect of success. The court also had to quantify the costs incurred by the plaintiff and decide on the appropriate basis for awarding those costs. The principles in Calderbank v Calderbank are designed to encourage settlement negotiations and to prevent parties from incurring unnecessary costs if they refuse a reasonable offer to settle.

The court found that the defendant's offers were not made in good faith, as they were conditional on the outcome of the litigation. The court held that the offers did not comply with the principles in Calderbank v Calderbank, and therefore, the plaintiff was entitled to costs on an indemnity basis. The court also found that the plaintiff was entitled to costs for the entire amount claimed, as the defendant had no real prospect of success in its defence. The court ordered that the defendant pay the plaintiff's costs of the proceedings on an indemnity basis.