COSTS — claim and cross-claim — judgment on further amended statement of claim — mixed success — costs following event — identification of relevant event — where plaintiff failed on principal claims for substantial damages — plaintiff seeking monetary judgment notwithstanding dismissal of claim for repudiation — where defendant obtained judgment for outstanding rent but failed on substantial damages claim — broad brush apportionment — plaintiff ordered to pay defendant’s costs subject to 25% reduction — Calderbank offers — offers made to separate parties — interdependent offers — lack of clarity as to whether offers capable of separate acceptance — whether rejection unreasonable — indemnity costs refused
Quick Take
1Where Calderbank offers are made by separate letters to independent parties but are in substance interdependent or contingent on acceptance by each party, they constitute joint offers not capable of separate acceptance, and their rejection cannot ground an indemnity costs order following Sahade v Bischoff (No 2) [2016] NSWCA 45.
2Where a lease provides for rent payable monthly in advance, rent accrues in full at the date payment is required and there is no room for apportionment on a daily basis when the lease is terminated mid-month, following Ocelota Ltd v Water Administration Ministerial Corporation [2000] NSWSC 370.
3In proceedings with mixed success on claim and cross-claim, broad-brush apportionment of costs is appropriate as a matter of impression and evaluation; where the plaintiff failed on its principal damages claims but the defendant also failed on substantial damages claims foreclosed by prior appellate authority, a percentage reduction to the successful party's costs order may reflect the mixed outcome.
