In the case of Newstart Homes Australia Pty Ltd v Kodiak Concrete Pty Ltd (No 2) [2024] QSC 144, the Supreme Court of Queensland, presided over by Justice Cooper, addressed the costs following the dismissal of a winding-up application against Kodiak Concrete Pty Ltd. The respondent, Kodiak, had successfully opposed the winding-up application on grounds of solvency and abuse of process. The court determined that Newstart Homes Australia Pty Ltd had committed an abuse of process by pursuing the application despite not establishing the amount payable in a statutory demand served on Kodiak.
Kodiak sought indemnity costs, citing Newstart’s unreasonable refusal of two Calderbank offers to resolve the application. While the court found that Newstart did not act unreasonably in refusing the first offer, it held that Newstart's rejection of the second offer was unreasonable. Consequently, the court ordered that Newstart pay Kodiak's costs on a standard basis up to the expiry date of the second Calderbank offer and on an indemnity basis thereafter.