Rialto Sports Pty Limited (Admins Apptd) v Cancer Care Associates Pty Limited; CCA Estates Pty Limited; Davjul Holdings Pty Limited; Armmam Pty Limited (No 3) [2023] NSWCA 279

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Rialto Sports Pty Limited (Admins Apptd) v Cancer Care Associates Pty Limited; CCA Estates Pty Limited; Davjul Holdings Pty Limited; Armmam Pty Limited (No 3) [2023] NSWCA 279 Hearing dates: 16 November 2023 Date of orders: 24 November 2023 Decision date: 24 November 2023 Before: Bell CJ at [1] Gleeson JA at [2] Decision: CA2022/3420, 3426, 3432, 3439 (1) In each appeal, pursuant to r 20.24 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), the whole of the report of Ms Janet Grey dated 17 April 2023 be adopted. (2) Judgment be entered for each respondent in the separate appeals in the following amount inclusive of interest up to 15 May 2023: (a) CA2022/3420 (Cancer Care) – judgment for the respondent in the amount of $563,676.55; (b) CA2022/3439 (Armmam) – judgment for the respondent in the amount of $106,585.60; (c) CA2022/3426 (CCA) – judgment for the respondent in the amount of $525,209.50; (d) CA2022/3432 (Davjul) – judgment for the respondent in the amount of $67,303.40; (3) The judgments referred to in (2) above shall take effect on 15 May 2023. (4) In each proceeding in the District Court (2018/115009, 114952, 115043, 2019/91017), the defendant to pay the plaintiff's costs of the proceedings on the ordinary basis up to 11 January 2021, and thereafter on an indemnity basis. (5) In each appeal, the respondent to pay the appellant's costs in this Court, including of the reference, on the ordinary basis. (6) In each appeal, and the proceedings below in the District Court referred to at (4) above, the appellant is to pay the respondent interest on costs and disbursements on appeal and in the proceeding below, at the rates set out in r 36.7 of the UCPR on the Allowed Percentage of each amount of costs and disbursements actually paid by the respondent, from the date of payment by the respondent of each such amount of costs and disbursements until such time as the appellant has paid the costs due to the respondent under any order made in these proceedings where: (a) X – equals the total amount of costs and disbursements which the respondent has paid or is liable to pay in connection with these proceedings; (b) Y – equals the total amount of costs and disbursements agreed or allowed on assessment to the plaintiff in connection with these proceedings; (c) the Allowed Percentage equals (Y/X x 100)%. Catchwords: PRACTICE AND PROCEDURE – reference on appeal – adoption of referee's report – whether referee erred in construction of contract COSTS – at trial and on appeal – Calderbank offer at trial – joint offer by multiple parties – offer of compromise not renewed on appeal – late concessions by party on appeal – whether special costs order appropriate at trial and on appeal Legislation Cited: Civil Procedure Act 2005 (NSW), s 101 Corporations Act 2001 (Cth), s 440D Supreme Court Act 1970 (NSW), s 45AA(1) Supreme Court Rules 1970 (NSW), Pt 72, r 13 Uniform Civil Procedure Rules 2005 (NSW), rr 20.14, 20.24, 36.4, 36.7, 42.1 Cases Cited: Bellgrove v Eldridge (1954) 90 CLR 613; [1954] HCA 36 Brittain v Commonwealth of Australia (No 2) [2004] NSWCA 427 Chocolate Factory Apartments Ltd v Westpoint Finance Pty Ltd [2005] NSWSC 784 Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 Kirby v Coote [2006] QCA 61 Lahoud v Lahoud [2006] NSWSC 126 Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 89 NSWLR 633; [2014] NSWCA 184 Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15 Owners SP92450 v JKN Para 1 Pty Ltd [2023] NSWCA 114 Rialto Sports Pty Limited v Cancer Care Associates Pty Limited; CCA Estates Pty Limited; Davjul Holdings Pty Limited; Armmam Pty Limited [2022] NSWCA 146 Rialto Sports Pty Ltd v Cancer Care Associates Pty Ltd; CCA Estates Pty Ltd; Davjul Holdings Pty Ltd; Armmam Pty Ltd (No 2) [2023] NSWCA 246 Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272; [2009] HCA 8 Trustee for the Salvation Army (NSW) Property Trust & Anor v Becker (No 2) [2007] NSWCA 194 Windsurfing International Inc v Petit [1987] AIPC 90-441 Category: Principal judgment Parties: 2022/3420 Rialto Sports Pty Limited (admins apptd) (Appellant) Cancer Care Associates Pty Limited (Respondent)