Council of the City of Liverpool v Turano [No 2]

[2009] NSWCA 176

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Costs
3. › Bullock and Sanderson orders
4. › Alternative claims against two defendants
5. › Action succeeding against one defendant only
6. › Whether conduct of unsuccessful defendant made it fair to impose liability for successful defendant's costs
7. › Whether denial of liability and cross-claiming sufficient conduct
1. Practice and Procedure
2. › Costs
3. › Bullock and Sanderson orders
4. › Whether portion of successful defendant's costs should be borne by unsuccessful defendant in absence of Sanderson or Bullock order
5. › Requirement for conduct making it fair to impose liability
1. Practice and Procedure
2. › Costs
3. › Indemnity costs
4. › Calderbank offers
5. › Whether offer constituted genuine compromise or invited capitulation
6. › Whether refusal of offer unreasonable
1. Practice and Procedure
2. › Costs
3. › Cross-claims
4. › Failed cross-claims for contribution and indemnity
5. › Each party to bear costs of unsuccessful cross-claim

Quick Take

An unsuccessful defendant's denial of liability and cross-claiming against the successful defendant does not, without more, constitute conduct warranting a Sanderson or Bullock order, particularly where the denial was not unreasonable because the issues depended on contested expert opinion. A Calderbank offer that requires the offeree to accept the correctness of the offeror's expert evidence and assume conduct of the offeror's defence places the offeree in a position of conflict and is not a reasonable offer capable of supporting indemnity costs. Where the factual substratum for a Sanderson or Bullock order is not established, there is no alternative basis upon which to apportion the successful defendant's costs against the unsuccessful defendant merely because the unsuccessful defendant cross-claimed.