Tred Consultants Pty Ltd v Kirana Training Pty Ltd (No.4) [2021] NSWDC 194

District Court New South Wales

Medium Neutral Citation: Tred Consultants Pty Ltd v Kirana Training Pty Ltd (No.4) [2021] NSWDC 194 Hearing dates: On the papers Date of orders: 24 May 2021 Decision date: 24 May 2021 Jurisdiction: Civil Before: Abadee DCJ Decision: See paragraph 38 Catchwords: COSTS – application by successful defendant for indemnity costs – three Calderbank Offers made by defendant to plaintiff – liability for referee costs Legislation Cited: Civil Procedure Act 2005 (NSW), s 98 Uniform Civil Procedure Rules 2005 (NSW) rr 20.18, 20.26 Cases Cited: Commonwealth v Gretton [2008] NSWCA 117 Murphy v Nationwide News Pty Ltd (No.2) [2021] FCA 432 Ng v Chong [2005] NSWSC 385 Tinyow v Lee [2006] NSWCA 247 Tred Consultants Pty Ltd v Kirana Training Pty Ltd (No.3) [2021] NSWDC 161 Texts Cited: Hamilton & ors, New South Wales Civil Procedure Handbook (Thomson Reuters). Category: Costs Parties: Tred Consultants Pty Ltd (Plaintiff/Cross-Defendant) Kirana Training Pty Ltd (Defendant/Cross-Claimant) Representation: Counsel: Mr R McCrudden for the plaintiff/cross-defendant Dr S Baron Levi for the defendant/cross-claimant

Solicitors: FutureLegal for the plaintiff/cross-defendant United ACL for the defendant/cross-claimant File Number(s): 2018/206266 Publication restriction: Nil.

Judgment

Background 1. On 7 May 2021, I delivered reasons for judgment in this proceeding [1] , and provided the parties with the opportunity to confer for the purpose of agreeing to dispositive orders, including orders for interest and costs. In particular, my orders envisaged the parties conferring to see if they could reach agreement as to those dispositive orders, but if the plaintiff did not agree with the short minutes supplied by the defendant within the 7 days the defendant was directed to supply them, the plaintiff should supply short submissions within a further 3 days ([144]-[145]) 2. The defendant supplied short minutes to the Court on 17 May 2021 and a short outline of written submissions on that date. The plaintiff did not supply submissions, within the period directed, but was granted an extension to do so expiring at 12pm on 24 May 2021. At the time these reasons are being delivered, that extended deadline has passed and no further submissions had been received from the plaintiff. 3. These reasons assume familiarity with my earlier reasons for judgment given on 7 May 2021. 4. The proceeding commenced on 4 July 2018. The plaintiff brought a money claim based upon the defendant's (admitted) refusal to pay the plaintiff's invoices of December 2016 and January 2017 issued pursuant to a written agreement entered into in October 2012 (which agreement was varied in the middle of 2013). 5. On 7 November 2018, the defendant filed its Defence. At the risk of some over-simplification, by that Defence, the defendant originally argued that its refusal to pay the two invoices was justified because of the plaintiff's alleged failure to abide by its own obligations relating to the quality of the services that were supplied. 6. On 5 July 2019, the defendant filed a Cross-Claim. As it had done in its earlier Defence, the cross-claimant reiterated (although in a more expansive way) that certain obligations under the agreement had not been performed by the plaintiff/cross-defendant but, in addition, and materially for present purposes, it also pleaded that it suffered loss and damage, for which it sought damages, arising from the cross-claimant receiving applications for 're-credits' from students for Commonwealth funding because of various reasons; which loss relevantly included making payments to the cross-defendant for students who had subsequently been re-issued credits. 7. As is apparent in those earlier reasons, a pivotal issue at the hearing was whether the amounts of the re-credits, as quantified by the referee, should be deducted from the amounts owing to the plaintiff for the unpaid invoices. I determined that question in favour of the defendant/cross-claimant. That was a legal determination which followed an extensive and detailed analysis of quantum upon the expressed assumption that the defendant was entitled to deduct the amount of the re-credits. 8. I had determined that after offsetting the debt on the cross-claim against the debt on the principal claim, the defendant/cross-claimant was entitled to the sum of $24,643.36 plus interest. 9. The defendant/cross-claimant has quantified the interest as being $2,098.20. There is no dispute about that. 10. I will make orders 1 and 2 in the defendant/cross-claimant's proposed short minutes of order, subject to varying order 2 so that there be a single amount for the monetary judgment, being $26,741.56. 11. The point of disagreement is costs. 12. The defendant/cross-claimant seeks its costs partially on an indemnity basis on the basis of the plaintiff's refusal to accept three Calderbank offers made by the defendant/cross-claimant, on 25 May 2020, 3 August 2020 and 10 September 2020. 13. In respect to each of those offers, the plaintiff/cross-defendant did not achieve a more favourable outcome than it would have if it accepted those offers. 14. In the version of short minutes supplied to the Court, the defendant/cross-claimant, as applicant for the special costs order, seeks an order that indemnity costs be payable in its favour from 25 May 2020, being the date of the first of the three Calderbank offers.