[2022] NSWSC 665

Volkswagen Financial Services Australia Pty Ltd v Atlas CTL Pty Ltd (Receivers and Managers Appointed)(In Liquidation) – [Costs]

Orders for costs – see [11]

Catchwords

COSTS – no issue of principle

Judgment

[1]
HIS HONOUR: On 12 May 2022, I gave judgment in the principal proceedings: Volkswagen Financial Services Australia Pty Ltd v Atlas CTL Pty Ltd (Receivers and Managers Appointed) (In Liquidation) [2022] NSWSC 573.
[2]
Definitions used in the principal judgment are used here.
[3]
The administrators/liquidators failed against each of the secured creditors. In the principal judgment, I directed the parties to provide position papers setting out their respective positions on costs. They did so, although the administrators/liquidators were late. The parties agreed that costs should be determined on the papers.
[4]
BMW and Nissan proffered short minutes of order setting out their respective positions on costs, which are not opposed by the administrators/liquidators. They seek indemnity costs from 28 March 2022 and 5 April 2022 respectively based on Calderbank letters of offer.
[5]
The only dispute is between the administrators/liquidators and Volkswagen.
[6]
Volkswagen seeks indemnity costs based on an email said to be a Calderbank letter sent to the administrators/liquidators on 13 April 2022, in which Volkswagen offered a reduction of $150,000 in lease liabilities of approximately $300,000 said to be owed by the administrators/liquidators to Volkswagen, against dismissal of the administrators/liquidators’ cross-claim.
[7]
In other words, the offer was that the administrators/liquidators pay Volkswagen $150,000 in respect of lease liabilities. That claim was not the subject of these proceedings and Volkswagen obtained no money judgment against the administrators/liquidators.
[8]
It therefore cannot be said that the administrators/liquidators achieved a result less advantageous than that offered or that Volkswagen received one more advantageous.
[9]
But in any event, in the context of the issues fought out in the proceedings and given the lateness of the offer, on the second day of the trial, it can hardly be said that the administrators/liquidators’ refusal of the offer was unreasonable.
[10]
In my opinion, Volkswagen is not entitled to an order for indemnity costs.
[11]
I make the following orders:
1. (1)
  The Amended Statement of Claim filed 11 March 2022 (fourth cross-claim) is dismissed.
2. (2)
  Judgment for the seventh respondent to the fourth cross-claim against the applicants to the fourth cross-claim for $281,266.39.
3. (3)
  The applicants to the fourth cross-claim are jointly and severally liable to pay the costs of the seventh respondent’s to the fourth cross-claim
4. (4)
  The applicants to the fourth cross-claim are jointly and severally liable to pay the costs of the fifth and sixth respondents’ to the fourth cross-claim of and incidental to the fourth cross-claim on
5. (5)
  The applicants to the fourth cross-claim are jointly and severally liable to the pay the costs of the first and second respondents of and incidental to the fourth cross-claim as agreed or assessed.