Cahill v Kenna (No 2) [2015] NSWSC 200

Supreme Court New South Wales

Medium Neutral Citation: Cahill v Kenna (No 2) [2015] NSWSC 200 Hearing dates: On the papers Decision date: 17 March 2015 Jurisdiction: Equity Division Before: McDougall J Decision: Costs payable by plaintiffs to defendants to be assessed on the indemnity basis from 1 November 2014. Catchwords: COSTS - indemnity costs - Calderbank letters - whether an offer to walk away amounts to a genuine offer to compromise - whether non-acceptance was unreasonable - relevance of whether evidence had been served - where plaintiffs indicated willingness to agree to offer, then changed their minds - whether court should draw inferences as to why they changed their minds - where, even without the benefit of hindsight, the plaintiffs' case was very weak - whether indemnity costs should run from the date of offer or the date of expiry. Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd (No.2) [2009] NSWCA 12 Cahill v Kenna [2014] NSWSC 1763 Calderbank v Calderbank [1975] 3 All ER 333 Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368 Category: Costs Parties: Peter Anthony Cahill (First Plaintiff) Duell Estates Pty Limited (Second Plaintiff) Greg Kenna (First Defendant) ACN 102 262 359 Pty Ltd (Formerly Landmark White (NSW) Pty Ltd) Representation: Counsel: MS Henry SC/JAC Potts (Plaintiffs) M T McCulloch SC / MF Newton (Defendants)