Hearing for costs of the proceeding in Mallonland Pty Ltd & Anor v Advanta Seeds Pty Ltd  QSC 74. The plaintiffs’ claim was dismissed on the basis that no duty of care was owed. However, the Court found that had a duty of care been owed, then the plaintiff would have succeeded on certain aspects of its breach case.
On the question of costs, the plaintiffs sought an order that they pay 50% of the defendant’s costs as a result of the defendant not succeeding on all issues. The defendant sought an order for costs on an indemnity basis, as the defendants had made a Calderbank offer which was rejected by the Plaintiffs.
The Court rejected the plaintiffs’ submission, as the issues on which the defendant was not successful did not take up significant time or expense in the proceedings, and held that costs should follow the event.
The Court also rejected the defendant’s submissions as to the Calderbank offer. The Court noted that the offer was held open for only 9 days, rather than the 14 day minimum period prescribed by the UCPR. It also observed that one of the conditions of the offer was that the plaintiffs obtain a written recommendation from Senior Counsel endorsing acceptance of the offer and that the plaintiffs’ Senior Counsel had not been willing to make that recommendation. In the circumstances, the Court determined that it was not unreasonable for the Plaintiffs’ to reject the Calderbank offer.
Accordingly, the Courts ordered that the plaintiffs pay the defendant’s costs of the proceeding.”
Mei Ying Barnes (with P Dunning QC and E Goodwin) appeared for the defendant, instructed by Clifford Gouldson Lawyers.
The judgment is published here.