Futurepower Developments Pty Ltd v TJ & RF Fordham Pty Ltd t/as TRN Group (No 2) [2019] NSWSC 1663

Supreme Court New South Wales

Medium Neutral Citation: Futurepower Developments Pty Ltd v TJ & RF Fordham Pty Ltd t/as TRN Group (No 2) [2019] NSWSC 1663 Hearing dates: 1 November 2019 Date of orders: 15 November 2019 Decision date: 15 November 2019 Jurisdiction: Equity - Technology and Construction List Before: Rein J Decision: See [17] and [20]. Catchwords: COSTS – Party/Party – Exceptions to general rule that costs follow the event – Offers of compromise/Calderbank offers – Where the defendant sent the plaintiff a Calderbank letter on 9 August 2017 (approximately two years before the case was finally determined) offering to drop its cross claim (valued at approximately $24,000) in return for the plaintiff agreeing to settle the proceedings and pay the defendant's costs – Held: plaintiff, acting reasonably, should have accepted the defendant's offer.

COSTS – Party/Party – Interest on costs – Where the case began in 2016 and was finally determined in 2019 – Defendant sought, and was granted, an order for interest on costs in the form used in Lahoud v Lahoud and Leda Pty Ltd v Weerden (No 2). Legislation Cited: Civil Procedure Act 2005 (NSW) Cases Cited: Baygol Pty Ltd v Foamex Polystyrene Pty Ltd [2005] FCA 1089 Futurepower Developments Pty Ltd v TJ & RF Fordham Pty Ltd t/as TRN Group [2019] NSWSC 1554 Giller v Procopets (No 2) [2009] VSCA 72; (2009) 24 VR 1 Lahoud v Lahoud [2006] NSWSC 126 Leda Pty Ltd v Weerden (No 2) [2007] NSWCA 283 Leichhardt Municipal Council v Green [2004] NSWCA 341 MT Associates Pty Ltd v Aqua-Max Pty Ltd (No 3) [2000] VSC 163 Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd [2005] NSWSC 481 Secretary to the Department of Business and Innovation v Murdesk Investments Pty Ltd (No 2) [2012] VSC 586 Texts Cited: G. E. Dal Pont, Law of Costs (LexisNexis Butterworths, 3rd ed, 2013) Category: Costs Parties: Futurepower Developments Pty Ltd (Plaintiff) Mr C. Zarb (Plaintiff's solicitor) TJ & RF Fordham Pty Ltd t/as TRN Group (Defendant) Representation: Counsel: Mr G. Gee (for Mr Zarb) Mr F. Hicks SC with Ms A. Carr (Plaintiff)