Penrith Whitewater Stadium Ltd & Anor v Lesvos Pty Ltd & Anor (No 2)

IPP JA: The appellants were successful in their appeal in [2007] NSWCA 176. The orders made by the Court (at [77]) were as follows: “(a) The appeal is upheld; (b) The orders made by Grove J are set aside; and (c) There should be judgment for the appellants and the respondents’ claims should be dismissed.”

In my reasons (with which McColl and Campbell JJA agreed) I said (at [78]): “As regards costs, subject to any argument that might be raised concerning the making of a Calderbank offer, I would propose the following orders: (a) The respondents pay the costs of the trial; (b) The respondents pay the costs of the appeal, save for the costs that were incurred: (i) in preparing the orange book and the arguments incorporated in it, and (ii) in preparing for the oral argument on appeal; in regard to arguments unconnected with s 54A(1) of the Conveyancing Act or s 52 of the Trade Practices Act or the notice (or amended notice) of contention; (c) There should be no order in respect of the costs so excluded; and (d) The respondents to have a certificate under the Suitors’ Fund Act 1951 (NSW) if otherwise entitled.”

In [78], reference was made to a Calderbank offer because, at the conclusion of the hearing of the appeal, senior counsel for the appellants asked for leave, once reasons for judgment had been delivered, to make written submissions in connection with a Calderbank offer.

The written submissions from both parties have been received.

Although leave was only given in regard to the making of written submissions concerning the Calderbank offer, the appellants’ written submissions argue, as well, that the respondents should be ordered to pay costs on an indemnity basis.

The parties were given a full opportunity at the hearing to make submissions as to costs (save in regard to the Calderbank issue) and no question of indemnity costs was then raised.

I have, nevertheless, read the parties’ submissions that have been filed in connection with the indemnity costs issue. I am not persuaded that an order for indemnity costs should be made on the “delinquency” ground.

On 20 February 2007, the appellants’ solicitors sent the Calderbank offer to the respondents’ solicitors. That offer was expressed to be available for acceptance only until 5.00 pm on 27 February 2007. The first time that the appellants’ defence relying on s 54A(1) of the Conveyancing Act 1919 (NSW) was served on the respondents was on 4 March 2007. By that date, the time for acceptance of the 20 February 2007 Calderbank offer had expired. Thus, there was no Calderbank offer in existence, capable of being accepted, at the time when the appellants first – with any degree of formality – informed the respondents that they were relying on s 54A(1). In the circumstances, I do not think that the making of the Calderbank offer should have any bearing on the order for costs proposed.

The appellants, in their written submissions, applied in other respects for the orders proposed in [78] of [2007] NSWCA 176 to be varied. The respondents, too, applied for variations of the proposed orders. In neither case was leave given (or even sought) for submissions of this kind to be made.

A practice appears to be growing of not making submissions about costs during the course of the appeal and then, after reasons for judgment have been published, making lengthy written submissions in this connection. It is a practice that should be discouraged.

I would, in any event, not uphold any of the other arguments presented concerning the variations that both parties seek to the proposed costs order. As neither party was successful in the costs applications made by the written submissions, there should be no order as to the costs of these submissions.

I see no reason to vary the orders I proposed in [78] of [2007] NSWCA 176. Accordingly, I propose that those orders be made, subject to an additional order that there be no order as to the costs of the applications to vary the proposed costs orders.

McCOLL JA : I agree with Ipp JA.

CAMPBELL JA : I agree with Ipp JA.