Alora Davies Developments 104 Pty Ltd (in liq) & Ors v Raphael & Anor [2024] NSWSC 735

Supreme Court New South Wales

Medium Neutral Citation: Alora Davies Developments 104 Pty Ltd (in liq) & Ors v Raphael & Anor [2024] NSWSC 735 Hearing dates: Last submissions and correspondence as to costs, 12 June 2024 Date of orders: 18 June 2024 Decision date: 18 June 2024 Jurisdiction: Equity - Corporations List Before: Black J Decision: The First and Second Defendants pay the costs of the proceedings against them, and the Third Defendant pay the costs of the proceedings against it, on an ordinary basis as agreed or as assessed. Catchwords: COSTS – Whether indemnity costs should be awarded against Defendants on basis of Calderbank principles – Whether unreasonable not to accept Calderbank offer – Where offer made prior to late amendment of Plaintiffs' pleadings. COSTS – Whether to make a gross sum costs order – Where differing scope of cases again Defendants are not fairly addressed by a gross sum assessment – Where Court cannot be satisfied that only recoverable costs are claimed. Legislation Cited: - Civil Procedure Act 2005 (NSW), s 98(4) - Corporations Act 2001 (Cth), s 588FF - Uniform Civil Procedure Rules 2005 (NSW), r 42.1 Cases Cited: - Alora Davies Developments 104 Pty Ltd (in liq) & Ors v Raphael & Anor [2024] NSWSC 547 - Calderbank v Calderbank [1975] 3 All ER 333 - Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322 - Hadid v Lenfest Communications Inc [2000] FCA 628 - Hamod v New South Wales [2011] NSWCA 375 - Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 - Nu Line Construction Group Pty Ltd v Fowler (aka Grippaudo) [2012] NSWSC 816 - Ofria v Cameron (No 2) [2008] NSWCA 242 - Re Alsafe Security Products Pty Ltd atf The Alsafe Trust (in liq) [2016] NSWSC 575 - Re Beverage Freight Services Pty Ltd [2020] NSWSC 797 - Simone Starr Diamond v Talus Diamond (No 4) [2013] NSWSC 811 - Tzaneros Investments Pty Ltd v Walker Group Constructions Pty Ltd (No 4) [2018] NSWSC 431 Category: Costs Parties: Alora Davies Developments 104 Pty Ltd (in liq) (First Plaintiff) Henry McKenna in his capacity as liquidator of Alora Davies Developments 104 Pty Ltd (in liq) (Second Plaintiff) David John Raphael (First Defendant) Priscilla Elizabeth Raphael (Second Defendant) Alora Property Group Pty Ltd (Third Defendant) Representation: Counsel: M Davis (Plaintiffs) I King (First and Second Defendants)