Ku-ring-gai Council v Chan (No 2) [2018] NSWCA 73

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Ku-ring-gai Council v Chan (No 2) [2018] NSWCA 73 Hearing dates: On the papers Date of orders: 11 April 2018 Decision date: 11 April 2018 Before: McColl JA at [1]; Meagher JA at [1]; Sackville AJA at [1] Decision: 1. Set aside order 2 made on 30 September 2017 and in lieu thereof order that the plaintiffs pay the fourth defendant's costs of their claim against it on the ordinary basis.

2. Order that the appellant Council pay the costs of the first and second respondents of this application. Catchwords: COSTS – where appeal by Council (fourth defendant) allowed from judgment in favour of plaintiffs – where plaintiffs rejected informal Calderbank letter from Council – whether costs incurred after offer rejected be assessed on the indemnity basis – where claim asserted "novel" duty of care on the principal certifying authority to avoid pure economic loss to subsequent purchaser – where close legal and factual analysis of relationships between parties required – where no lay or expert evidence served on plaintiff at time of offer – not unreasonable to refuse to settle Cases Cited: Chan v Acres (No 3) [2016] NSWSC 1389 Jones v Bradley (No 2) [2003] NSWCA 255 Ku-ring-gai Council v Chan [2017] NSWCA 226 Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344 Category: Costs Parties: Ku-ring-gai Council (Appellant) Rebecca Chan (First Respondent) Warren Cox (Second Respondent Robert Acres (Third Respondent) Mitchell Howes Civil & Structural Engineers Pty Ltd (Fourth Respondent) Representation: Counsel: