District Court
New South Wales
Medium Neutral Citation: WIB Australia Pty Ltd v Bi (No 2) [2024] NSWDC 51 Hearing dates: 2 February 2024 (written submissions); 15 February 2024 Date of orders: 23 February 2024 Decision date: 23 February 2024 Jurisdiction: Civil Before: Dicker SC DCJ Decision: There be no order as to the costs of the proceedings with the intent that each party is to bear its or their costs of the proceedings.
Catchwords: COSTS – defendants were unsuccessful on a number of issues – Calderbank offers were made by successful defendants – appropriate costs order – whether failure by the plaintiff to accept Calderbank offers was unreasonable in the circumstances
Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth)
Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: AB v Keanes(No 2) [2019] NSWDC 765
Calderbank v Calderbank [1975] 3 All ER 333
Della Franca v Lorenzato; Burwood Council v Lorenzato(No 2) [2022] NSWCA 53
Griffith v Australian Broadcasting Corporation (No 2) [2011] NSWCA 145
Hutley v Costco (No 2) [2021] NSWCA 335
McInnes v Rheem Australia Pty Ltd [2021] NSWCA 89
McLaughlin v Dungowan Manly Pty Ltd [2010] NSWSC 306
Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25
Oshlack v Richmond River Council [1998] HCA 11; (1988) 193 CLR 72 at 122
Real Estate Property Management Pty Ltd v WaterCorp Investments Pty Ltd [2018] NSWCA 194
Sze Tu v Lowe (No 2) [2015] NSWCA 91
United Resource Management Pty Ltd v Par Recycling Services Pty Ltd (No 2) [2024] NSWCA 29
Valmont Interiors Pty Ltd v Giorgio Armani Australia Pty Ltd (No 3) [2021] NSWCA 160
Category: Costs Parties: WIB Australia Pty Ltd (Plaintiff)
Shainaz Bi (First Defendant)
Shabnum Begum (Second Defendant)Representation: Counsel:
Solicitors:
M Daniels (Plaintiff)
G Radcliff (First and Second Defendants)
SMB Law (Plaintiff)
Legacy Legal (First and Second Defendants)
File Number(s): 2022/00161536 Publication restriction: No
JUDGMENT
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Before the Court is the issue of the appropriate costs order to be made following the Court’s decision in WIB Australia Pty Ltd v Bi [2023] NSWDC 571 (“the Judgment”), handed down on 15 December 2023.
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In that decision, the Court found for the defendants, Ms Bi and Mrs Begum. However, the plaintiff was successful on a number of significant issues which had been pleaded by the defendants and which consumed significant hearing time at the final hearing.
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When the Judgment was handed down, on the application of the parties, directions were made by the Court for the filing of written submissions and for the issue of the appropriate costs order to be listed for hearing.
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Both parties filed written submissions on 2 February 2024. In substance, while accepting to some extent that an order that there be no order as…
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- Case
- [2024] NSWDC 51
- Decision Date
CaseChat Overview and Summary
The court examined the circumstances surrounding the Calderbank offers and the plaintiff's responses. It considered the nature of the offers, the timing, and the plaintiff's reasons for rejecting them. The court found that the Calderbank offers were genuine and that the plaintiff's failure to accept them was unreasonable in the circumstances. The court concluded that an appropriate costs order should be made in favour of the defendants.
The court ordered that there be no order as to the costs of the proceedings with the intent that each party is to bear its or their costs of the proceedings. This means that neither party is entitled to a costs order, and each party will bear their own costs incurred during the proceedings. The court's decision highlights the importance of evaluating Calderbank offers carefully and the potential consequences of rejecting them without reasonable justification.
Orders
Orders of the court
There be no order as to the costs of the proceedings with the intent that each party is to bear its or their costs of the proceedings.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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