Oliveri Legal Pty Ltd v Cassegrain Tea Tree Oil Pty Ltd (No 3) [2023] NSWSC 1500

Supreme Court New South Wales

Medium Neutral Citation: Oliveri Legal Pty Ltd v Cassegrain Tea Tree Oil Pty Ltd (No 3) [2023] NSWSC 1500 Hearing dates: 04 December 2023 Date of orders: 04 December 2023 Decision date: 04 December 2023 Jurisdiction: Equity Before: Elkaim AJ Decision: See paragraph 37 Catchwords: COSTS — party/party — indemnity basis — Calderbank offers — offers required the parties to mutually release each other in respect of all claims both known and unknown — whether rejection unreasonable — removal of caveats pending appeal Cases Cited: Calderbank v Calderbank [1975] 3 All ER 333 Oliveri Legal Pty Ltd v Cassegrain Tea Tree Oil Pty Ltd (No 2) [2023] NSWSC 1082 Category: Procedural rulings Parties: Oliveri Legal Pty Ltd (Plaintiff) Cassegrain Tea Tree Oil Pty Ltd (Defendant) Representation: Counsel: Mr C Locke (Plaintiff) Mr G Sirtes SC (Defendant) Mr D Ratnam (Defendant)

Solicitors: Oliveri Lawyers (Plaintiff) Madison Marcus Law Firm (Defendant) File Number(s): 2021/134642

JUDGMENT 1. There are two notices of motion before the court; one filed by the defendant on 22 September 2023 and the other filed by the plaintiff on 20 October 2023. 2. I gave judgment in the primary proceedings on 7 September 2023 (Oliveri Legal Pty Ltd v Cassegrain Tea Tree Oil Pty Ltd (No 2) [2023] NSWSC 1082). I found in favour of the defendant and ordered the plaintiff to pay the defendant's costs of the proceedings. I gave leave to the parties to raise any issues concerning my costs order. 3. The plaintiff's notice of motion seeks a stay of my orders and a deferral of the defendant's motion. The plaintiff has appealed my decision. I understand the appeal is due to be heard on 29 February 2024. 4. The defendant's notice of motion seeks an amendment to my costs order, primarily to seek a period of indemnity costs arising from offers made by the defendant to the plaintiff, but not accepted by the plaintiff. The motion also seeks a direction that caveats lodged by the plaintiff on two properties owned by the defendant be removed (via the dissolution of orders made by Lindsay J on 18 May 2021). 5. The plaintiff also seeks an amendment to my costs order, effectively for the defendant to pay any costs associated with preparation of material in response to affidavits served by the defendant but ultimately not relied upon during the hearing (including not calling evidence from the respective deponents of the affidavits).