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[2025] NSWCA 274
appellant. The Court ordered judgment for the first defendant against the plaintiff for $210,000, interest of $70,620.24, and required the plaintiff to execute and deliver discharges of the specified...
The Court had already decided the main appeal and returned to settle consequential orders. It ordered the builder to pay the developer $210,000, interest, and the costs of the cross-claim in the periods specified, and to discharge three mortgages. The Court accepted that the developer's first settlement offer gave the builder a reasonable time to respond, given that the builder had known the deed's terms for months. It therefore made indemnity costs orders from 26 September 2024, while allocating earlier costs according to which claims had been pursued and when the deed took effect.
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2,384 words · generated 06/10/2026
These are supplementary reasons of the New South Wales Court of Appeal, delivered on 18 December 2025. The Court had published its principal reasons and made orders on 5 December 2025. It then invited submissions on the developer's cross-claim and on costs in the Court below ([3]). The present reasons deal with those remaining matters.
4 cited instruments linked from this judgment.
The Court refers to Kaloriziko Pty Ltd as trustee for Ryde Combined Unit Trust as the “developer”, and Calibre Construction Group Pty Ltd as the “builder” ([4]). Camile Chanine was the second defendant below and second appellant. Eddie Tran and Ninth Campsie Pty Ltd were also involved in the underlying litigation and in the deed relevant to the dispute.
The key event for costs was a deed executed on 8 February 2024. Under it, the builder released Mr Tran and Ninth Campsie in return for a transfer of the Arncliffe properties for $5 million ([11]). In the principal judgment, the Court had held that the benefit the builder obtained under the deed exceeded what the developer otherwise owed the builder, so that the developer's liability to the builder was discharged ([11], referring to the principal judgment at [131]-[168]).
The developer made three settlement offers. The first, served on 25 September 2024, proposed dismissal of the builder's claims and the developer's cross-claim, no order as to costs, and discharge of the mortgages ([13]). It was open until 29 September. The builder did not respond. The second offer, served on 8 October 2024 on substantially the same terms, remained open for 28 days. It also received no response ([22]). The third, a Calderbank offer served on 9 May 2025, included a $200,000 payment by Mr Chanine towards the builder's costs, which made it a better result for the builder than the earlier offers. The builder did not respond to that offer either ([23]-[24]).
The Court accepted agreed orders giving the developer judgment for $210,000, together with $70,620.24 interest under s 101 of the Civil Procedure Act 2005 (NSW). It also ordered the builder to execute and deliver a registrable discharge of three mortgages within seven days, or within further time agreed by the parties (36).
The main contested issue in these supplementary reasons was costs. The Court replaced the usual costs order with orders dividing responsibility according to the claims, the relevant dates and whether costs were on an ordinary or indemnity basis. The developer had to pay the builder's costs of its breach of contract claim up to 8 February 2024. From that date, the builder had to pay the developer's costs of the proceedings, including the cross-claim, first on an ordinary basis and then on an indemnity basis from 26 September 2024. The builder also had to pay Mr Chanine's costs on those same ordinary and indemnity periods (36).
The Court's costs reasoning concentrated on the First Offer and whether its closing date was reasonable under UCPR r 20.26(5)(b). That rule, as set out in the judgment, applies where an offer is made less than two months before trial and requires an acceptance date that “is to be such date as is reasonable in the circumstances” ([29]). The parties accepted that this was the applicable part of the rule because the hearing was listed to start on 1 October 2024 ([30]).
The developer received the deed on 24 September 2024, following a discovery order. It served its offer the next day, with four days to accept it ([19]-[20], [30]). The builder argued that this was too short, given the approaching hearing and the absence of expert valuation evidence. The Court rejected that position in the circumstances of this case.
First, the builder had been a party to the deed and had known its terms since at least 8 February 2024. It had therefore had substantially longer than the developer to consider the transaction and the value of what it received ([30]-[31]). Second, the developer's covering letter included the registered transfers for the properties. Those documents showed a combined 2020 purchase price of at least $6.9 million, against the $5 million consideration in the deed. The Court considered that the builder could assess the significance of that information and the likely capital appreciation without waiting for expert evidence ([31]-[32]).
The Court also addressed the builder's argument by reference to what happened later. In the Court's view, the builder continued to dispute that the deed discharged the developer's liability, both below and on appeal, even after expert evidence became available. It inferred that the absence of expert evidence while the offer was open did not change the builder's decision not to respond ([33]). That is a case-specific inference, not a general finding that valuation evidence is unnecessary in settlement decisions.
The Court considered the purpose and practical effect of the offer regime. It observed that litigation involves cost, risk and public resources, and that the UCPR offer provisions give parties an additional incentive to resolve proceedings ([34]). The First Offer would have allowed the builder to relinquish a claim that the principal judgment had found worthless, avoid exposure to the developer's cross-claim and costs, and avoid the expense of continuing the litigation. In the Court's view, acceptance would have put the builder in a significantly better position ([34]).
The Court was therefore not persuaded to make a different costs order that would relieve the builder of the consequences of rejecting the First Offer. It nevertheless adopted the concessions made by the developer and Mr Chanine, which limited the periods and claims for which costs would be paid ([34]-[35]).
This judgment applies the existing procedural rules; it does not purport to change them. It sets out the relevant part of UCPR r 20.26(5), distinguishing between offers made at least two months before trial, for which the rule prescribes a minimum 28-day period, and offers made closer to trial, for which the acceptance period must be reasonable in the circumstances ([29]).
The decision illustrates how the Court assessed reasonableness on the facts before it. Relevant circumstances included when each party obtained knowledge of the deed, the builder's participation in the deed, the information supplied with the offer, the proximity of the hearing, and the later conduct showing that valuation evidence did not alter the builder's position ([30]-[33]). The judgment does not state a fixed minimum period for offers made shortly before trial.
The reasons also refer to UCPR r 42.14 as providing for the costs consequences on which the developer relied, while considering whether the Court should “otherwise” order ([34]). The decision demonstrates the Court's approach to that question on this record: it considered the offer's terms and practical value, the information available to the recipient, the risks and costs of ongoing litigation, and the parties' concessions. It does not establish that every rejected offer on similar terms automatically results in indemnity costs.
The costs order also shows the importance of separating claims and periods. The developer accepted responsibility for costs on the builder's contract claim before 8 February 2024, but not for costs of pursuing claims against other parties ([35]). The deed marked a significant change in the developer's position because of the principal judgment's finding that the benefit it conferred discharged the developer's liability. The order then used 26 September 2024 as the changeover date from ordinary to indemnity costs in favour of the developer and Mr Chanine ([36]).
At [29], the judgment reproduces UCPR r 20.26(5): where an offer is made less than two months before trial, the closing date “is to be such date as is reasonable in the circumstances.” In plain English, the rule does not set one universal acceptance period for every late offer. The circumstances of the particular offer matter.
At [30], Adamson JA says the closing date for the First Offer was reasonable. The Court's reasons included the timing of the developer's receipt of the deed and the builder's earlier knowledge of it. The conclusion relates to this offer and this litigation; it is not a general rule that four days is always adequate.
At [32], the Court says the significance of the registered transfers “ought not be underestimated.” It viewed the transfer documents as information from which the builder could assess the original purchase price and draw inferences about the transaction and property values. In plain English, the Court considered that the builder already had useful material for evaluating the offer, even without a new expert valuation.
At [33], the Court says it was “plain, with the benefit of hindsight” that expert evidence made no difference to the builder's forensic decision. The point was that the builder maintained its argument about the deed even after expert evidence was available. The Court inferred that the missing evidence had not caused the non-response to the First Offer.
At [34], Adamson JA says the offer regime gives parties an “additional incentive” to resolve proceedings. The Court considered not only the offer's formal wording but also what accepting it would have meant for the builder: avoiding further litigation, costs and exposure on the cross-claim. Its assessment of the offer's value was central to refusing to relieve the builder from the costs consequences sought.
At [35], the Court limits the developer's pre-deed costs responsibility to the builder's breach of contract claim. In plain English, one party's responsibility for costs did not extend automatically to every claim the other party pursued against other defendants.
This decision is most relevant to costs disputes involving a UCPR offer made less than two months before trial, where the recipient argues the acceptance period was too short. The Court assessed the period in context, including whether the recipient already knew the key transaction or factual material, what information accompanied the offer, and whether the recipient had a practical capacity to evaluate it ([30]-[33]).
It may also be relevant where a party argues that missing expert evidence made it unreasonable to accept or assess an offer. The decision shows that the Court may examine whether the evidence would actually have affected the recipient's position, including by considering the recipient's later conduct ([33]). The reasoning does not remove the need for a case-specific assessment.
The costs reasoning may be pertinent where a rejected offer would have avoided substantial further litigation and left the recipient better off when compared with the eventual litigation position. The Court considered the offer's real consequences, including the effect of the deed on the builder's claim, the cross-claim, costs exposure and further litigation expense ([34]).
The allocation reasoning is relevant where liability or responsibility changes at a particular point in time, or where proceedings include several claims against different parties. The Court distinguished the builder's contract claim from its claims against Mr Chanine, Mr Tran and Ninth Campsie, and separately treated the deed's date as material to the developer's costs position ([27], [35]-[36]).
The decision should not be read as establishing that an offer with a four-day acceptance period is generally reasonable, or that a failure to respond invariably warrants indemnity costs. Its findings depended on the facts the Court identified.
The supplied judgment does not discuss any later treatment of this decision. As a decision delivered on 18 December 2025, it could not itself report how subsequent courts treated it. The provided text therefore does not establish whether it has been followed, distinguished or considered in later judgments.
The reasons do refer to the Court's earlier principal judgment, Kaloriziko Pty Ltd as trustee for Ryde Combined Unit Trust v Calibre Construction Group Pty Ltd (No 2) [2025] NSWCA 259. The present judgment relies on the principal judgment's conclusion that the deed's benefit discharged the developer's liability to the builder ([11]). It also cites the primary judge's reasons in Calibre Construction Group Pty Ltd v Kaloriziko Pty Ltd atf Ryde Combined Unit Trust; Kaloriziko Pty Ltd atf Ryde Combined Unit Trust v Calibre Construction Group Pty Ltd (No 2) [2025] NSWSC 593 for the basis on which the builder's claim against Mr Chanine was dismissed ([27]).
The judgment identifies Calderbank v Calderbank [1975] 3 All ER 333 as the source associated with the form of the Third Offer ([12], [23]). It does not undertake a detailed analysis of that decision's doctrine. Its costs reasoning principally addresses the First Offer under UCPR r 20.26 and the consequences the developer said followed from non-acceptance.
The judgment determines that the First Offer's closing date was reasonable on these facts, but does not specify how many days would generally be reasonable for an offer made shortly before trial. Nor does it set out a general test for weighing the trial timetable against prior knowledge of the subject matter and the material accompanying an offer. Those matters remain fact-sensitive under the language of r 20.26(5)(b) reproduced at [29].
The Court's hindsight analysis at [33] raises a question about how far later litigation conduct can show that additional evidence would not have changed an earlier settlement decision. The judgment uses the builder's continued position as support for an inference in this case, but does not develop a general evidentiary rule for assessing that issue.
The Court did not need to resolve the builder's separate objections to the Second and Third Offers in detail after reaching its conclusion about the First Offer and adopting the parties' concessions. The Third Offer's conditional wording, including its reference to entering a deed of settlement, was an argument made by the builder ([25]), not a question on which the judgment gives a separate ruling. The reasons therefore should not be treated as deciding that objection generally.
Finally, the costs order reflects the parties' proposed concessions and the Court's assessment of the claims, dates and offer in this particular litigation. The judgment does not prescribe a universal method for allocating costs where a deed later changes the parties' financial positions, or where claims against multiple parties are dismissed or resolved. Those features require attention to the procedural history and the actual orders sought.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Kaloriziko Pty Ltd as trustee for Ryde Combined Unit Trust v Calibre Construction Group Pty Ltd (No 3) [2025] NSWCA 274
Hearing dates: On the papers
Decision date: 18 December 2025
Before: Mitchelmore JA at [1]
Kirk JA at [2]
Adamson JA at [3]
Decision: (1) In addition to the orders made by this Court on 5 December 2025 in lieu of those made by Stevenson J on 20 June 2025, make the following orders:
(a) Judgment for the first defendant against the plaintiff in the sum of $210,000 (the Judgment Sum).
(b) Make an order, pursuant to s 101 of the Civil Procedure Act 2005 (NSW), for interest on the Judgment Sum in the amount of $70,620.24.
(c) Order that within 7 days, or such further time as the parties agree, the plaintiff execute and deliver to the first defendant a discharge of mortgage in registrable form in respect of the registered mortgages AT129578, AT129577 and AT129580.
(2) Set aside order (4) made on 5 December 2025 and, in lieu thereof, make the following orders:
(a) Order the first defendant to pay the plaintiff’s costs of the plaintiff’s claim for breach of contract only, on an ordinary basis from the commencement of those proceedings until 8 February 2024.
(b) Order the plaintiff to pay the first defendant’s costs of the entirety of the proceedings, including the cross claim, on an ordinary basis from 8 February 2024 until 26 September 2024 and, as and from that date on an indemnity basis.
(c) Order the plaintiff to pay the second defendant’s costs of the proceedings on an ordinary basis until 26 September 2024 and, as and from that date, on an indemnity basis.
Catchwords: COSTS — costs of proceedings in court below — where party made three offers to resolve proceedings — offer of compromise — Calderbank offer — ordinary costs — indemnity costs — interest — cross claim — discharge of mortgage — Uniform Civil Procedure Rules 2005 (NSW), rr 20.25, 20.26
Legislation Cited: Civil Procedure Act 2005 (NSW), s 101
Uniform Civil Procedure Rules 2005 (NSW), rr 20.25, 20.26, 42.1, 42.14
Cases Cited: Calderbank v Calderbank [1975] 3 All ER 333
Calibre Construction Group Pty Ltd v Kaloriziko Pty Ltd atf Ryde Combined Unit Trust; Kaloriziko Pty Ltd atf Ryde Combined Unit Trust v Calibre Construction Group Pty Ltd (No 2) [2025] NSWSC 593
Kaloriziko Pty Ltd as trustee for Ryde Combined Unit Trust v Calibre Construction Group Pty Ltd (No 2) [2025] NSWCA 259
Category: Costs
Parties: Kaloriziko Pty Ltd as trustee for Ryde Combined Unit Trust (First Appellant)
Camile Chanine (Second Appellant)
Calibre Construction Group Pty Ltd (First Respondent)
Eddie Tran (Second Respondent)
Ninth Campsie Pty Ltd (Third Respondent)
Representation: Counsel:
M Ashhurst SC / S Scott (Appellants)
S Balafoutis SC / M Sheldon / Y Truong (First Respondent)
Solicitors:
Fortis Law (Appellants)
One Group Legal (First Respondent)
File Number(s): 2025/261209
MITCHELMORE JA: I agree with Adamson JA.
KIRK JA: I agree with Adamson JA.
ADAMSON JA: On 5 December 2025, this Court made orders and published its reasons in this matter: Kaloriziko Pty Ltd as trustee for Ryde Combined Unit Trust v Calibre Construction Group Pty Ltd (No 2) [2025] NSWCA 259 (the principal judgment or PJ). Directions were made for the filing and service of submissions relating to the first appellant’s cross claim and to the costs of the proceedings in the Court below, if any party sought an order other than order (4), which was the usual order as to costs, that they follow the event: Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 42.1. These reasons assume familiarity with the principal judgment.
In these reasons, the parties will be referred to as they were in the principal judgment: Kaloriziko Pty Ltd as trustee for Ryde Combined Unit Trust as the developer and Calibre Construction Group Pty Ltd as the builder. The parties and their standing in the Court below and in this Court are set out below.
| Name of party | In Court below | In this Court | | Kaloriziko Pty Ltd | First defendant/ cross claimant | First appellant | | Camile Chanine | Second defendant | Second appellant | | Calibre Construction Group Pty Ltd | Plaintiff/ cross defendant | First respondent |
As a result of the exchange of submissions, the parties have agreed on orders as to the judgment and interest which ought be made with respect to the developer’s cross claim. Had these orders been set out, as they ought to have been, in the notice of appeal, they could have been made on 5 December 2025.
It is common ground that the builder ought be ordered to execute a discharge of the mortgage which was granted by the developer to the builder to obtain a vacation of the freezing order which had been made against the developer’s assets at an interlocutory stage of the proceedings in the Court below. However, there is an issue as to when the builder ought be obliged to execute the discharge. The builder submitted that it ought have until 2 January 2026, being 28 days from the date of the judgment, to allow for the possibility that an application for special leave and an application for a stay of execution may be filed. The developer submitted that the order should be made requiring the builder to execute a discharge “within 7 days, or such further time as the parties agree”.
I prefer the developer’s formulation. Having regard to the time that has elapsed since this Court made orders on 5 December 2025, it is reasonable to expect that the builder has decided whether to take this matter further. It is also reasonable to expect that the parties will co-operate if a short extension is required to permit the builder to make a final decision on that matter.
The principal issue between the parties is as to the costs of the proceedings in the Court below.
The ultimate position of the developer and Mr Chanine, as expressed in their submissions in reply, incorporated some concessions in response to the builder’s submissions. They submitted that this Court ought make the following costs orders:
Set aside order (4) made on 5 December 2025 and, in lieu thereof, order that:
a. The first respondent (plaintiff) pay the second appellants’ (second defendant’s) costs of the proceedings below on an ordinary basis until 26 September 2024 and, as and from that date, on an indemnity basis thereafter.
b. The first appellant (first defendant) pay the first respondents (plaintiffs) costs of the breach of contract claim (only) from the proceedings below on the ordinary basis from the commencement of those proceedings until 8 February 2024;
c. The first respondent (plaintiff) pay the first appellant’s (first defendant’s) costs of the entirety of the proceedings below (including the Cross Claim) on an ordinary basis from 8 February 2024 until 26 September 2024
d. The first respondent (plaintiff) pay the first appellant’s (first defendant’s) costs of the entirety of the proceedings below (including the Cross Claim) on an indemnity basis as and from 26 September 2024.
The builder submitted that the developer ought pay the builder’s costs of the proceedings, without limitation, prior to 8 February 2024 and that the builder ought be liable for the developer’s and Mr Chanine’s costs on the ordinary basis thereafter.
The significance of the date of 8 February 2024 is that it was the date on which the deed was executed whereby the builder released Mr Tran (the third defendant in the Court below) and Ninth Campsie (the fourth defendant in the Court below) in return for a transfer of the Arncliffe properties for the consideration of $5 million (the deed). This Court held in the principal judgment that because the benefit obtained by the builder under the deed exceeded the amount for which the developer was otherwise liable to the builder, the developer’s liability to the builder was discharged: see PJ [131]-[168].
In support of the orders they propose, the developer and Mr Chanine relied on three offers they made to resolve the proceedings:
an offer of compromise served on (Wednesday) 25 September 2024 which was expressed to remain open until (Sunday) 29 September 2024 (the First Offer), in circumstances where the hearing was then listed to commence on Tuesday 1 October 2024;
an offer of compromise served on 8 October 2024 which was expressed to remain open until 5 November 2024 (the Second Offer); and
a Calderbank offer (after Calderbank v Calderbank [1975] 3 All ER 333) served on 9 May 2025, 10 days before the new hearing date of 19 May 2025 (the Third Offer).
The First and Second Defendants and the Cross-Claimant offer to compromise the whole of the proceedings and cross-claim on the following basis:
1 The Plaintiff’s claims against the First and Second Defendants are dismissed, with no order as to costs.
2 The cross-claim is dismissed, with no order as to costs.
3 The mortgage(s) registered by the First and Second defendants in accordance with the orders made by the Court on 26 May 2023 are to be immediately discharged.
4 The Plaintiff is to do all things reasonably necessary to ensure that the First and Second Defendants can cause the mortgage(s) referred to above are discharged.
This offer is open for acceptance until 5.00pm on 29 September 2024.
This offer is made in accordance with Rule 20.26 of the Uniform Civil Procedure Rules 2005 (NSW).
1. We refer to the above proceedings and to the “Deed of Agreement and Set Off’’ dated 8 February 2024 (Deed), produced in response to those orders.
2. By the Deed, your client has inter alia effectively received the property located at 31-35 Flora Street, Arncliffe, being the land contained in folio identifiers 12/2/4059, 13/2/4059 and 14/2/4059 (Properties), valued at between $6,920,0621 and $8,000,0002 for consideration of $5,000,000.3
3. The consideration referred to above constitutes a payment in complete satisfaction of your client’s claim for the recovery of “retention monies” against of $1,875,629.59, with an excess of between $44,432.41 and $1,124,370.41.
4. In all the circumstances, it is clear that your client will not recover the amount that it claims.
5. It is also clear that your client stands to be liable to our client in respect of inter alia significant delay damages on the cross-claim.
6. Notwithstanding the above, our clients are conscious of the considerable time and cost that both parties have incurred to date and are very mindful of the further costs that will be required in proceeding with this litigation at the hearing.
7. As such, our clients have instructed us to make an offer of compromise to your client to settle these proceedings.
(Emphasis in original.)
Fn1 The total sum for the sale of the [Arncliffe] Properties on or about 4 September 2020, as set out in the attached Transfers AQ371005, AQ371007 and AQ371010.
Fn2 The current value of the Properties as at today.
Fn3 Deed, Recital H.
(Emphasis in original.)
The First Offer was made against the following forensic background.
On 22 March 2024, the proceedings were listed for hearing in the Court below on Monday 1 October 2024 with an estimate of 3 days. On 10 and 17 September 2024, the matter was listed for return of subpoenas.
On 20 September 2024, the Court below made the following orders:
1. By 6pm Tuesday 24 September 2024, the first plaintiff, Calibre Construction Group Pty Ltd (Calibre), the third defendant, Eddie Tran, and the fourth defendant, Ninth Campsie Pty Ltd (ACN 619 267 462) (Ninth Campsie) give discovery pursuant to Uniform Civil Procedure Rules 2005 (NSW) rule 21.2 to the first and second defendants of any:
a. agreements, between Calibre (or any employee, officer or agent of Calibre) and Mr Eddie Tran in relation to these proceedings so far as that agreement concerns any mortgage granted pursuant to orders made in these proceedings on 26 May 2023 or any discharge of that mortgage or any consideration flowing from Mr Tran to Calibre;
b. agreements between Calibre and Ninth Campsie, or any of their respective directors or employees or agents of Calibre in relation to these proceedings so far as that agreement concerns any mortgage granted pursuant to orders made in these proceedings on 26 May 2023 or any discharge of that mortgage or any consideration flowing from Ninth Campsie to Calibre; and
c. recording or evidencing any payments made by Mr Eddie Tran or Ninth Campsie (or any of their respective directors or employees or agents) to Calibre in relation to these proceedings or in relation to any mortgage granted pursuant to orders made in these proceedings on 26 May 2023.
2. Liberty to apply on 24 hours’ notice.
The documents discovered pursuant to the order included the deed, which was provided to the developer’s solicitors on Tuesday 24 September 2024, the day before the First Offer was served.
On Tuesday 1 October 2024, which was to be the first day of the hearing in the Court below, the developer sought leave to amend its pleading to allege that the benefit obtained by the builder under the deed ought be deducted from any amount for which the developer was otherwise liable to the builder. On that day, the Court below granted leave to the developer to file its draft Further Amended Technology and Construction List Response, made directions requiring the builder to file any reply and made directions as to lay and expert evidence, limited to the issues raised by the amendments to the developer’s response. The matter was stood over for directions on 29 November 2024 for the purpose of being assigned a date for final hearing. On that day, the matter was fixed for hearing in the Court below for three days commencing on 19 May 2025. The usual order for hearing was made.
On 9 May 2025 (10 days before the commencement of the hearing), the developer served the Third Offer, which was a Calderbank offer. It was similar in terms to the First and Second Offers although, if accepted, it would have delivered a better result for the builder as it provided that Mr Chanine would pay the builder $200,000 on account of the builder’s costs. The offer was expressed to be: “[i]n full and final settlement of the dispute, and subject to the parties entering into a deed of settlement.”
The builder did not respond to the Third Offer.
The builder submitted that:
it was entitled to its costs of the proceedings from their commencement on 5 July 2022 until 8 February 2024 against the developer and Mr Chanine as the proceedings were properly commenced and maintained and that, but for the deed, the builder would have succeeded and been entitled to substantial damages and costs;
although the builder should be liable for costs from 8 February 2024, its liability ought only be on the ordinary basis and not on the indemnity basis as the First Offer was only open for four days immediately prior to the first hearing date in circumstances where there was no expert evidence as to valuation of the Arncliffe properties and no party associated with the builder had been party to their purchase in 2020;
in the circumstances set out in (2), the closing date of the First Offer was not “reasonable in the circumstances”, as required by UCPR r 20.26(5);
the Second Offer was served before any expert valuation evidence was filed and therefore it was not unreasonable for the builder not to accept it;
the Third Offer was expressed to be subject to the parties entering a deed of settlement and was thus “incapable of acceptance”; and
it ought not be liable for the costs of the developer’s cross claim since its claim for liquidated damages amounted to “a short argument turning on the proper inferences to be drawn from a limited subset of documents” and that the appropriate order for costs on the cross claim ought be that there be no order for the costs.
For the reasons which follow I consider that the developer and Mr Chanine are entitled to the costs which they seek.
The builder’s claim against Mr Chanine was dismissed by the primary judge because his Honour found that there was no breach of trust by the developer (because there was no trust) and, therefore, there could be no knowing involvement by Mr Chanine in the developer’s breach of trust: Calibre Construction Group Pty Ltd v Kaloriziko Pty Ltd atf Ryde Combined Unit Trust; Kaloriziko Pty Ltd atf Ryde Combined Unit Trust v Calibre Construction Group Pty Ltd (No 2) [2025] NSWSC 593 at [32]. The deed had no effect on this position. Accordingly, Mr Chanine is entitled to his costs from the date of the commencement of the proceedings and not, as the builder contended, only from 8 February 2024.
The basis on which the costs ought be ordered (ordinary basis or indemnity) is addressed below as the offers made were made on behalf of both Mr Chanine and the developer.
The closing date for acceptance of an offer—
(a) in the case of an offer made two months or more before the date set down for commencement of the trial – is to be no less than 28 days after the date on which the offer is made, and
(b) in any other case – is to be such date as is reasonable in the circumstances.
It was common ground that, as the date set down for the hearing of the matter when the First Offer was made was 1 October 2024, UCPR r 20.25(5)(b) applied. The developer first received a copy of the deed on Tuesday 24 September 2024. The First Offer was sent on Wednesday 25 September 2024 and was open until 5pm on Sunday 29 September 2024. I accept the developer’s submissions that the closing date for acceptance of the First Offer was, in the circumstances, reasonable. There is no suggestion that the developer was aware of the terms of the deed prior to 24 September 2024 when it was produced. As the builder was party to the deed (since it released Ninth Campsie and Mr Tran from liability to it), which was dated 8 February 2024, it had been in a position since at least 8 February 2024 to assess the value of the benefit conferred on it by the deed.
Further, as the developer’s solicitors explained in their covering letter to the First Offer, the benefit obtained by the builder under the deed was, in effect, at least $6.9 million (the combined purchase price for the Arncliffe properties in 2020, as established by the copies of the registered transfers attached to the covering letter for the First Offer) plus any capital gain in those properties in the period from 2020 to the date of the deed in 2024 minus $5 million (being the price paid for the properties by a company related to the builder). This information about the transaction was only available to the developer on 24 September 2024, but had been known and was available to the builder for over seven months before the First Offer was made.
The significance of the consideration evident in the registered transfers ought not be underestimated. These documents showed that the vendors of the Arncliffe properties in 2020 were three apparently unrelated parties, giving rise to the inference that these were arms-length transactions. Further, it could reasonably be inferred that the purchaser acquired them in order to develop them and would not have paid materially more than their market value at that time. The builder was in a position to appreciate that there had been capital appreciation of residential properties in the Arncliffe area between 2020 and 2024. Indeed, it can be inferred that the builder wanted to acquire the Arncliffe properties for that very purpose. Thus, the suggestion that the builder needed expert evidence to assess the value of the Arncliffe properties for its own purposes is somewhat unreal.
In any event, it is plain, with the benefit of hindsight, that the expert evidence made no difference to the builder’s forensic decision to dispute that it had received a benefit under the deed, since the builder maintained the position in the Court below and in this Court that the deed did not discharge the developer’s liability to it. It can therefore be inferred that the absence of expert evidence in the period during which the First Offer was open made no difference to the builder’s decision not to respond to it.
(a) Judgment for the first defendant against the plaintiff in the sum of $210,000 (the Judgment Sum). (b) Make an order, pursuant to s 101 of the Civil Procedure Act 2005 (NSW), for interest on the Judgment Sum in the amount of $70,620.24. (c) Order that within 7 days, or such further time as the parties agree, the plaintiff execute and deliver to the first defendant a discharge of mortgage in registrable form in respect of the registered mortgages AT129578, AT129577 and AT129580.
(a) Order the first defendant to pay the plaintiff’s costs of the plaintiff’s claim for breach of contract only, on an ordinary basis from the commencement of those proceedings until 8 February 2024. (b) Order the plaintiff to pay the first defendant’s costs of the entirety of the proceedings, including the cross claim, on an ordinary basis from 8 February 2024 until 26 September 2024 and, as and from that date on an indemnity basis. (c) Order the plaintiff to pay the second defendant’s costs of the proceedings on an ordinary basis until 26 September 2024 and, as and from that date, on an indemnity basis.
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Kaloriziko Pty Ltd as trustee for Ryde Combined Unit Trust
Calibre Construction Group Pty Ltd
The Court ordered judgment for the first defendant against the plaintiff for $210,000, interest of $70,620.24, and required the plaintiff to execute and deliver discharges of the specified mortgages within seven days or further time agreed. It set aside the earlier costs order and substituted costs orders allocating costs by party, claim, period and basis.
Litigation is costly and is fraught with risk. When matters are litigated, public resources are used for the administration of justice. The purpose of the UCPR relating to offers of compromise is to provide an additional incentive to parties to litigation to resolve proceedings. The First Offer required the builder to relinquish its claim against the developer (which the deed had, as this Court found in the principal judgment, rendered worthless) and enabled it to avoid its liability for liquidated damages under the cross claim, its liability to the developer for the costs of proceedings and the need for it to fund its own costs. Had it accepted the First Offer, the builder would have been in a significantly better position. UCPR r 42.14 provides for the consequences for which the developer contended. I am not persuaded that this Court ought “otherwise” order to relieve the builder of the consequences of its non-acceptance of the First Offer, except to the extent to which the developer and Mr Chanine have made specific concessions which are incorporated in their proposed orders.
The developer accepted that it ought be ordered to pay the builder’s costs of the proceedings up to 8 February 2024, before the benefit which accrued to the builder as a result of the deed discharged any liability which the developer would otherwise have had, but only in so far as they were limited to the claim for damages for breach of contract. This limitation is appropriate since there is no reason why the developer ought pay the costs incurred by the builder in prosecuting its claims against Mr Chanine, Mr Tran and Ninth Campsie, which were either dismissed (in the case of Mr Chanine) or resolved (in the case of Mr Tran and Ninth Campsie).
For these reasons, I propose the following orders:
In addition to the orders made by this Court on 5 December 2025 in lieu of those made by Stevenson J on 20 June 2025, make the following orders: