Forte Sydney Construction Pty Ltd v N Moit & Sons (NSW) Pty Ltd (No. 2) [2022] NSWDC 57

District Court New South Wales

Medium Neutral Citation: Forte Sydney Construction Pty Ltd v N Moit & Sons (NSW) Pty Ltd (No. 2) [2022] NSWDC 57 Hearing dates: On the papers Date of orders: 15 March 2022 Decision date: 15 March 2022 Jurisdiction: Civil Before: Russell SC DCJ Decision: (1) Order that the costs payable by the plaintiff to the defendant are to be assessed on an ordinary basis up to and including 13 September 2021 and on an indemnity basis after that date. (2) Order that the costs of this application for indemnity costs be paid by the plaintiff to the defendant on an indemnity basis. Catchwords: COSTS – Calderbank offer – principles – failure of the plaintiff to accept the Calderbank offer made by the defendant was unreasonable – time at which indemnity costs commence Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) r 42.2 Cases Cited: Forte Sydney Constructions Pty Ltd v N Moit & Sons (NSW) Pty Ltd [2021] NSWDC 673 Leichhardt Municipal Council v Green [2004] NSWCA 341 Category: Costs Parties: Forte Sydney Construction Pty Ltd (Plaintiff) N Moit & Sons (NSW) Pty Ltd (Defendant) Representation: Counsel: J Cameron (Solicitor) (Plaintiff) D Hand (Defendant)

Solicitors: J Cameron Lawyers Pty Ltd (Plaintiff) Colman Greig (Defendant) File Number(s): 2019/00145109

Judgment

Introduction 1. On 14 December 2021 I delivered judgment in the primary proceedings: Forte Sydney Constructions Pty Ltd v N Moit & Sons (NSW) Pty Ltd [2021] NSWDC 673. I made the following orders: 1. Judgment for the defendant on the plaintiff's claim. 2. Judgment for the defendant on the cross-claim for $418,485.04. 3. Order the plaintiff to pay the defendant's costs of the proceedings. 4. Grant leave to approach my Associate within 7 days to obtain a date for submissions as to any application for a different costs order arising from any settlement offers made. 1. The defendant has made an application for indemnity costs based upon a Calderbank letter. The parties agreed to file written submissions and that the costs issue should be dealt with on the papers.