WK Marble and Granite Pty Ltd v JKE Holdings Pty Ltd (No 2)

WK Marble and Granite Pty Ltd, the plaintiff, brought an action against JKE Holdings Pty Ltd, the second defendant, resulting in a dispute over indemnity costs. The case was heard in the Supreme Court of New South Wales. The plaintiff sought indemnity costs from the second defendant, arguing that the second defendant had failed to accept a Calderbank offer and that the rejection of the offer was unreasonable. The second defendant, in turn, argued that the plaintiff's costs were not recoverable under the contractual provision for solicitor/client costs.

The primary legal issue the court had to address was whether the second defendant's rejection of the Calderbank offer was reasonable, and if sufficient time was given for acceptance. Additionally, the court needed to determine whether the contractual provision for solicitor/client costs precluded the plaintiff from recovering indemnity costs.

The court found that the second defendant's rejection of the Calderbank offer was reasonable, as the terms proposed by the plaintiff were not immediately acceptable. Furthermore, the court held that the second defendant had sufficient time to consider and respond to the offer. In relation to the contractual provision, the court determined that it did not preclude the plaintiff from recovering indemnity costs. Consequently, the court ordered that the plaintiff pay the second defendant's costs arising from the matter of the undertaking raised in the plaintiff's submissions. Subject to this, the second defendant was ordered to pay the plaintiff's costs on an indemnity basis.