Treloar Constructions Pty Limited v McMillan (No 2) [2017] NSWCA 146

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Treloar Constructions Pty Limited v McMillan (No 2) [2017] NSWCA 146 Hearing dates: On the papers Decision date: 22 June 2017 Before: Beazley P; Gleeson JA; Emmett AJA Decision: (1) The security for costs paid into Court on 14 November 2016 by the appellant for the costs of the respondent in the sum of $75,000 be released to the appellant pursuant to r 41.3 of the Uniform Civil Procedure Rules 2005 (NSW).

(2) Order 2 made by the Court on 6 April 2017 be varied as follows:

(a) Set aside the orders made in the District Court and, in lieu thereof, direct the entry of judgment for the plaintiff in the sum of $418,991.77 together with interest up to the date of judgment for $321,974.45 and order the defendant to pay the plaintiff's costs in the District Court on an ordinary basis.

(3) Order 3 made by the Court on 6 April 2017 be varied as follows:

(a) The respondent pay the appellant's costs of the appeal on the ordinary basis up to 18 August 2016 and thereafter on an indemnity basis and the respondent to have a certificate under the Suitors' Fund Act 1951 (NSW) if so entitled.

(4) The respondent pay the appellant's costs of this motion. Catchwords: COSTS – indemnity costs – application for order that costs at first instance be assessed on the indemnity basis – reliance on settlement offer made prior to trial as constituting "Calderbank offer" – no indication in settlement offer that non-acceptance would be relied on as a basis for seeking indemnity costs – settlement offer insufficient basis to make indemnity costs order