Deane Projects Building Pty Ltd v Kinda Kapers Holdings Pty Ltd (No.2) [2021] NSWDC 222

District Court New South Wales

Medium Neutral Citation: Deane Projects Building Pty Ltd v Kinda Kapers Holdings Pty Ltd (No.2) [2021] NSWDC 222 Hearing dates: On the papers Date of orders: 01 June 2021 Decision date: 01 June 2021 Jurisdiction: Civil Before: Abadee DCJ Decision: See paragraph 30 Catchwords: COSTS— application by successful cross-claimant for indemnity costs following service of rules offer and Calderbank offer — whether offer valid pursuant to the UCPR or alternatively Calderbank principles Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) r 20.26 Cases Cited: Deane Projects Building Pty Ltd v Kinda Kapers Holdings Pty Ltd [2020] NSWDC 622 Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No.2) [2008] NSWCA 85 Texts Cited: Nil. Category: Costs Parties: Deane Projects Building Pty Ltd (Plaintiff/Cross-Defendant) Kinda Kapers Holdings Pty Ltd (Defendant/Cross-Claimant) Representation: Counsel: Mr M Maconachie for the Plaintiff/Cross-Defendant Mr G Carolan for the Defendant/Cross-Claimant

Solicitors: Keystone Lawyers for the Plaintiff/Cross-Defendant Morrissey Law for the Defendant/Cross-Claimant File Number(s): 2019/121014 Publication restriction: Nil.

COSTS Judgment 1. On 28 April 2021 judgment was entered in this matter following the parties' agreed adoption of a referee's report which quantified the parties' respective claims. The referee's report was made following a hearing on liability, which occurred between 6 and 9 October 2020 and findings made by me in a judgment delivered on 19 October 2020 (Deane Projects Building Pty Ltd v Kinda Kaper Holdings Pty Ltd [2020] NSWDC 622). 2. In essence, the plaintiff (and cross-defendant) ('Deane Projects) obtained a damages award in the sum of $38,461.16 on the statement of claim and the cross-claimant (and defendant) (' Kinda Kapers'') obtained a damages award in the sum of $254,810.63. 3. The parties were given the opportunity to make submissions on costs, being the only remaining issue. 4. Kinda Kapers applies for the following costs orders: 1. In respect to the statement of claim: 1. each party bear their own costs in respect of the statement of claim up to 25 September 2020; and 2. Deane Projects pay Kinda Kapers' costs in respect of the statement of claim on an indemnity basis from 25 September 2020. 1. Deane Projects pay Kinda Kapers' costs of the cross-claim: 1. on the ordinary basis up to 25 September 2020; and 2. on an indemnity basis from 25 September 2020. 1. This application is founded upon Kinda Kapers' service of a rules offer it served on Deane Projects on 25 September 2020 and, on the same date, a Calderbank offer in materially similar terms. 2. Deane Projects' position is that: 1. In respect to the statement of claim, it agrees with Kinda Kapers' order in 4(a)(i) above, but disagrees that it should pay Kinda Kapers' costs in relation to that claim on an indemnity basis from 25 September 2020. 2. In respect to the cross-claim, it agrees with Kinda Kapers' order in 4(b)(i), but disagrees that it should pay Kinda Kapers' costs in relation to that cross-claim on an indemnity basis from 25 September 2020.