Protec Pacific Pty Ltd v Steuler Services GmbH & Co KG; BHP Billiton Olympic Dam Corporation Pty Ltd v Steuler Services GmbH & Co KG [No 2]

[2015] VSCA 123

Victorian Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Costs
3. › Split trial
4. › Whether costs of first hearing should be awarded to party successful on that issue but unsuccessful overall
5. › Dominant or separable issues
6. › Effect of reversal of findings on appeal
1. Practice and Procedure
2. › Costs
3. › Indemnity costs
4. › Calderbank offers
5. › Whether rejection of settlement offer unreasonable
6. › Multi-factorial assessment including prospects of success and risk of failure
7. › Whether trial judge erred in exercise of discretion
1. Appeal
2. › Leave to appeal
3. › Costs orders
4. › Threshold for granting leave to appeal against costs order
5. › Whether strong reason to interfere with discretion
6. › Supreme Court Act 1986 (Vic), s 17A(1)(b)
1. Appeal
2. › Standard of appellate review
3. › Discretionary decisions
4. › House v The King principles
5. › Whether error in exercise of discretion

Quick Take

Where a trial is split and a party succeeds on an issue at the first hearing but that finding is reversed on appeal, the party cannot claim costs of the first hearing as a dominant or separable issue — the appellate outcome governs. When assessing the reasonableness of rejecting a Calderbank offer, the correct approach requires a multi-factorial analysis including the risk of total failure, not merely a comparison between the amount claimed and the amount offered.