Amaca Pty Limited v Seltsam Pty Limited (No. 2) (Re: Donkin) [2018] NSWDDT 3

Dust Diseases Tribunal New South Wales Medium Neutral Citation: Amaca Pty Limited v Seltsam Pty Limited (No. 2) (Re: Donkin) [2018] NSWDDT 3 Hearing dates: On the papers Date of orders: 27 February 2018 Decision date: 27 February 2018 Before: Judge D. Russell Decision: (1) Decline the application of the cross-claimant for the cross-defendant to pay costs from 5 October 2016 onwards on an indemnity basis. (2) Decline the cross-claimant's application for an order under s 98(4) of the Civil Procedure Act 2005. (3) Order the cross-claimant to pay the cross-defendant's costs of the determination of costs issues on the papers. Catchwords: COSTS – indemnity costs – Calderbank offer – whether offer was a genuine compromise – whether failure to accept offer was unreasonable Legislation Cited: Civil Procedure Act 2005 Cases Cited: Singapore Airlines Cargo Pty Limited v Principle International Pty Limited (No. 2) [2017] NSWCA 340 at [30] Category: Costs Parties: Amaca Pty Limited (cross-claimant) Seltsam Pty Limited (cross-defendant) Representation: Counsel: J. Sheller (cross-claimant) B. Ilkovski (cross-defendant)

Solicitors: Mills Oakley (cross-claimant) Colin Biggers & Paisley (cross-defendant) File Number(s): DDT 54/2016/1

Judgment

INTRODUCTION 1. On 9 February 2018 I gave judgment for the cross-claimant (Amaca) against the cross-defendant (Seltsam) for $185,000, which was 50% of the damages and costs for which Amaca settled the claim brought against it by the late Mr Donkin. I ordered Seltsam to pay Amaca's costs of the cross-claim and granted leave to the parties to seek different costs orders if so advised. 2. The parties have filed written submissions on costs orders and agreed that the matter should be dealt with on the papers.