Midcoast Petroleum Pty Ltd v Keldros Pty Ltd (No 2) [2019] NSWSC 1406

Supreme Court New South Wales

Medium Neutral Citation: Midcoast Petroleum Pty Ltd v Keldros Pty Ltd (No 2) [2019] NSWSC 1406 Hearing dates: On the papers Date of orders: 17 October 2019 Decision date: 17 October 2019 Jurisdiction: Equity Before: Ward CJ in Eq Decision: 1. Order the plaintiff to pay: (i) 80% of the defendants' costs of the proceedings up to and including 18 October 2017 on the ordinary basis; and (ii) the defendants' costs from 19 October 2017 on the indemnity basis. 2. Order the plaintiff to pay interest to the defendants on the allowed percentage of the costs the subject of Order 1(i) and the costs the subject of Order 1(ii) on the basis that interest be calculated on the amounts actually paid for or on account of costs and disbursements to the defendant's legal advisers in connection with these proceedings, at the rate set out in UCPR r 36.7 from the date of payment of each such amount until the first to occur of such time as the plaintiff has paid the costs due to the defendants under Order 1, or any further order relating to interest on costs in these proceedings. 3. Liberty to apply on seven days' notice for any further order in relation to Order 2. Catchwords: COSTS - Calderbank offer made by defendants pre-trial – offer not accepted by plaintiff – whether warrants a departure from the ordinary rule as to costs – held that the plaintiff's failure to accept the offer was unreasonable – special costs order is warranted Cases Cited: Brymount Pty Ltd v Cummins (No 2) [2005] NSWCA 69 Calderbank v Calderbank [1975] 3 All ER 333; 3 WLR 586 Commonwealth of Australia v Gretton [2008] NSWCA 117 Evans Shire Council v Richardson (No 2) [2006] NSWCA 61 Lahoud v Lahoud [2011] NSWSC 994 Leichhardt Municipal Council v Green [2004] NSWCA 341 Midcoast Petroleum Pty Ltd v Keldros Pty Ltd [2019] NSWSC 970 Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344 SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323 Category: Costs Parties: Midcoast Petroleum Pty Ltd (Plaintiff) Keldros Pty Ltd (First Defendant) Andrew Robert Plant (Second Defendant) Representation: Counsel: MP Cleary (Plaintiff) R Marshall SC with H Durack (Defendants)