Xue v Karimbla Properties (No.45) Pty Ltd (No 2) [2023] NSWSC 795

Supreme Court New South Wales

Medium Neutral Citation: Xue v Karimbla Properties (No.45) Pty Ltd (No 2) [2023] NSWSC 795 Hearing dates: On the papers Date of orders: 07 July 2023 Decision date: 07 July 2023 Jurisdiction: Equity Before: Henry J Decision: See [26] Catchwords: COSTS — application for indemnity costs on the basis of unsuccessful plaintiffs' failure to accept Calderbank offer — where offer made following pleadings, exchange of evidence and mediation — whether "walk away offer" represented genuine compromise — indemnity costs awarded Legislation Cited: Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Calderbank v Calderbank [1976] Fam Law 93; [1975] 3 All ER 333 Miwa Pty Ltd v Siantan Properties Pty Ltd (No 2) [2011] NSWCA 344 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Taheri v Vitek (No 2) [2014] NSWCA 344 Valmont Interiors Pty Ltd v Giorgio Armani Australia Pty Ltd (No 3) [2021] NSWCA 160 Category: Costs Parties: Cong Wu Xue (First Plaintiff) Feng Ying Liu (Second Plaintiff) Karimbla Properties (No.45) Pty Ltd (First Defendant) Meriton Property Services Pty Limited (Second Defendant) Representation: Solicitors: Juris Cor Legal (First and Second Plaintiffs) Group General Counsel – Meriton Group (First and Second Defendants) File Number(s): 2020/00276251 Publication restriction: Nil

JUDGMENT 1. On 25 May 2023, I gave judgment in this matter, dismissing the plaintiffs' claim and ordering the plaintiffs to pay the first and second defendants' costs on an ordinary basis unless a party sought a different costs order within 14 days: Xue v Karimbla Properties (No.45) Pty Ltd [2023] NSWSC 552. 2. These reasons deal with the defendants' application for indemnity costs from 8 February 2022, on the basis of a Calderbank offer. They assume familiarity with the judgment and adopt the same terms. 3. The defendants rely on written submissions filed 8 June 2023. 4. On 19 June 2023, a direction was made for the plaintiffs to file and serve written submissions and any affidavits in response to the defendants' application by 28 June 2023, and the parties were notified that the Court would determine the issue of costs on the papers. 5. No written submissions or evidence have been filed by the plaintiffs. 6. On 30 June 2023, my Chambers received an email from the plaintiffs' solicitor advising that the plaintiffs disagreed with the first and second defendants' application for a special costs order, they had filed a notice of intention to appeal and they wished for the defendants' costs application to be considered following the result of the appeal. By email sent from my Chambers to the parties that day, the plaintiffs' solicitor was notified that the application would be dealt with in accordance with the direction made (noting that the time for the plaintiffs to file and serve any written submissions and affidavits had been extended to 30 June 2023) and the filing of the notice of intention to appeal did not warrant deferral of the determination of the issue of costs at first instance. 7. No further material was received from the plaintiffs. Accordingly, I have proceeded to consider the defendants' application in the absence of any written submissions or evidence from the plaintiffs.