Montgomery & Anor v MyFootDr (Aust) Pty Ltd (No. 2) [2021] NSWDC 506

District Court New South Wales

Medium Neutral Citation: Montgomery & Anor v MyFootDr (Aust) Pty Ltd (No. 2) [2021] NSWDC 506 Hearing dates: On the papers Date of orders: 23 September 2021 Decision date: 23 September 2021 Jurisdiction: Civil Before: Russell SC DCJ Decision: (1) Subject to Orders (2) and (3) below, order the plaintiffs to pay the defendant's costs of the proceedings on the ordinary basis. (2) Order the defendant to pay the plaintiffs' costs of the plaintiffs' Notice of Motion filed on 2 August 2021. (3) Order the defendant to pay the plaintiffs' costs thrown away (if any) as a result of the defendant obtaining leave to, and filing, its Amended Defence. Catchwords: COSTS – Calderbank offers – whether failure to accept offers was unreasonable Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) rr 42.1, 42.2 Cases Cited: Calderbank v Calderbank [1975] 3 All ER 333 Montgomery & Anor v MyFootDr (Aust) Pty Ltd [2021] NSWDC 439 Category: Costs Parties: Kevin Montgomery (First Plaintiff) Kemcare Pty Ltd (Second Plaintiff) My FootDr (Aust) Pty Ltd (Defendant) Representation: Counsel: A Crossland (Plaintiffs) D Robertson (Defendant)

Solicitors: Attwood Marshall Lawyers (Plaintiffs) Colin Biggers & Paisley (Defendant) File Number(s): 2019/380408

Judgment

Background 1. On 25 August 2021 I gave judgment for the defendant and reserved the question of costs of the proceedings, including reserved costs: Montgomery & Anor v MyFootDr (Aust) Pty Ltd [2021] NSWDC 439. 2. The parties agreed that the court should deal with the costs question on the papers, by consideration of written submissions. 3. The defendant filed the affidavit of Ms L Chapman, solicitor, dated 10 September 2021 (DX 10). This affidavit annexed copies of four separate offers made by the defendant to the plaintiffs in relation to costs. 4. The following written submissions were received: 1. Written submissions by counsel for the defendant dated 10 September 2021 (MFI 8). 2. Written submissions by counsel for the plaintiffs, undated (MFI 9). 3. Written submissions in reply by counsel for the defendant dated 21 September 2021 (MFI 10). 1. In the primary judgment I found for the defendant, on the basis that the Donlon letter dated 13 September 2019 was not a final audit of the DPPP Balance Sheet. Thus there had not been a final and binding determination of the Clawback Amount and the amount payable as the Deferred Purchase Price: see the primary judgment at pars 78-81 and 98. 2. In par 100 of the primary judgment I noted that several other defences had been pleaded. I did not deal with those defences in my primary judgment because my finding in relation to the Donlon letter dated 13 September 2019 disposed of the proceedings in favour of the defendant, without the need to consider those additional defences.