JAKO INDUSTRIES PTY LTD -v- PERKINS (WA) PTY LTD [2026] WASC 158 (S)

[2026] WASC 158 (S) Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : JAKO INDUSTRIES PTY LTD -v- PERKINS (WA) PTY LTD [2026] WASC 158 (S) CORAM : FORRESTER J HEARD : ON THE PAPERS DELIVERED : 17 JUNE 2026 FILE NO/S : CIV 1334 of 2024 BETWEEN : JAKO INDUSTRIES PTY LTD Plaintiff AND PERKINS (WA) PTY LTD Defendant Catchwords: Practice and Procedure - Costs - Indemnity costs - Calderbank offers - Rejection of offers - Whether rejection unreasonable Legislation: Nil Result: Application for indemnity costs order refused Plaintiff pay the defendant's costs of the proceedings, to be taxed if not agreed Category: B -- 1 of 8 -- [2026] WASC 158 (S) Page 2 Representation: Counsel: Plaintiff : No appearance Defendant : No appearance Solicitors: Plaintiff : Bennett Defendant : HWLE Lawyers Case(s) referred to in decision(s): Currie v Currie [No 3] [2018] WASC 306 Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115; (2009) 41 WAR 1 Jako Industries Pty Ltd v Perkins (WA) Pty Ltd [2026] WASC 158 Strzelecki Holdings Pty Ltd v Jorgenson [2019] WASCA 96; (2019) 54 WAR 399 -- 2 of 8 -- [2026] WASC 158 (S) FORRESTER J Page 3 FORRESTER J: Introduction 1 On 30 April 2026, I delivered judgment in Jako Industries Pty Ltd v Perkins (WA) Pty Ltd,1 giving judgment for Perkins (Jako decision). 2 Perkins now seeks an order that Jako pay its costs (including any reserved costs) from 8 November 2024 on an indemnity basis so that the defendant is to recover all of its costs incurred except insofar as they are of an unreasonable amount or have been unreasonably incurred. In the alternative, Perkins seeks an order that Jako pay Perkins' costs of the proceedings to be taxed if not agreed. 3 Jako opposes an order being made for indemnity costs, but accepts that an order that Jako pay Perkins' costs of the proceedings to be taxed if not agreed is appropriate. 4 On 30 April 2026, I made an order that the decision as to costs be made on the papers. 5 For the reasons which follow, I refuse the application for indemnity costs and order that Jako pay Perkins' costs of the proceedings to be taxed if not agreed. Factual background 6 The defendant relies upon the affidavit of Elizabeth Rose Lester, affirmed on 7 May 2026, from which I have drawn the following summary. 7 The expert determination the subject of the Jako decision (Expert Determination) was that Perkins pay Jako the sum of $208,054 plus interest. As at 4 December 2022 (the date of the Expert Determination), interest of $14,740 had accrued. 8 The writ of summons seeking relief was lodged on 22 March 2024. 9 The Statement of Claim was lodged on 31 May 2024, and the Defence was lodged on 16 July 2024. 10 The Amended Statement of Claim was lodged on 1 October 2024. The Amended Defence was lodged on 1 November 2024. 1 Jako Industries Pty Ltd v Perkins (WA) Pty Ltd [2026] WASC 158. -- 3 of 8 -- [2026] WASC 158 (S) FORRESTER J Page 4 11 As at 8 November 2024, interest of $24,111.46 had accrued, making a total of $232,165.46 owed by Perkins to Jako.2 12 On that date, Perkins made a Calderbank offer to resolve the proceedings for the sum of $250,000 inclusive of interest plus GST, with the parties to bear their own costs, in final settlement of the proceedings (first Calderbank offer).3 13 By letter dated 10 December 2024, Jako rejected the first Calderbank offer and made a counteroffer to accept the Expert Determination sum, plus interest, plus a further amount of $525,000 in final settlement of the proceedings.4 14 Jako's total claim had been for it to be paid the sum of $989,158 (plus interest).5 15 A Further Amended Statement of Claim was lodged on 30 January 2025, and the Further Amended Defence was lodged on 11 March 2025. The matter was entered for trial on 4 June 2025. 16 On 15 April 2025, Perkins made a further Calderbank offer, offering to pay Jako the sum of $250,000 inclusive of interest plus GST, on the basis that both parties bear their own costs of the proceedings, and further to forego its entitlement to recover costs in related but separate proceedings for pre-action discovery (Jako having been ordered to pay Perkins' costs of those proceedings) (second Calderbank offer).6 17 As at 15 April 2025, interest of $29,663.07 had accrued, meaning that Perkins owed Jako the sum of $237,717.07.7 Submissions 18 Perkins submitted that Jako unreasonably rejected the first and second Calderbank offers. It submitted that, in each case: (1) the offer was made at a time when the pleadings had closed, the issues had been identified, and all of the evidence was known to the parties; 2 Affidavit of Elizabeth Rose Lester affirmed 7 May 2026 (Lester Affidavit) [17]. 3 Lester Affidavit, ERL 3. 4 Lester Affidavit, ERL 4. 5 Lester Affidavit, ERL 10 [36]. 6 Lester Affidavit, ERL 5. 7 Lester Affidavit [18]. -- 4 of 8 -- [2026] WASC 158 (S) FORRESTER J Page 5 (2) the time allowed for Jako to consider the offer was reasonable; (3) the offer exceeded the amount ordered to be paid in accordance with the expert determination, and in the case of the 15 April 2025 offer, included an offer to forego a considerable sum by way of costs; (4) at the date of the offer, Jako had no reasonable prospect of success, as was found to be the case in a number of paragraphs of the Jako decision; (5) the terms of the offer were clear; and (6) an application was foreshadowed for indemnity costs if the offer were rejected. 19 Jako submitted that the rejections of the first and second Calderbank offers were not unreasonable because: (1) the offers did not represent a compromise, because when costs were taken into account, they represented either an amount less than, or only minimally more, than Jako's entitlement; (2) if Jako was successful, it would be entitled to an amount much closer to $1,000,000; (3) the refusal of an offer to forego costs is not unreasonable in the context of giving up proceedings which were arguable; and (4) the assessment of reasonableness was made by Perkins with the benefit of hindsight, whereas Jako's assessment of its prospects of success in the proceedings was reasonable at the time of the rejection of the offers. Legal framework 20 The legal principles to be observed in an application for indemnity costs are well-established. 21 There must be some special or unusual feature of a case to warrant an award of indemnity costs. One well-recognised basis for an award of indemnity costs is where the unsuccessful party unreasonably rejected a Calderbank offer.8 8 Strzelecki Holdings Pty Ltd v Jorgenson [2019] WASCA 96; (2019) 54 WAR 399 [82]. -- 5 of 8 -- [2026] WASC 158 (S) FORRESTER J Page 6 22 The party who makes a Calderbank offer bears the onus of satisfying the court that it should make an award of indemnity costs in its favour. All of the relevant facts and circumstances must be considered in determining whether a party's rejection of a Calderbank offer was unreasonable. The mere fact that the recipient of a Calderbank offer is ultimately worse off than they would have been had the offer been accepted does not mean that the rejection was unreasonable.9 23 In deciding whether the rejection of a Calderbank offer was unreasonable, regard should ordinarily be had to at least the following factors: (a) the stage of the proceeding at which the offer was received; (b) the time allowed to the offeree to consider the offer; (c) the extent of the compromise offered; (d) the offeree's prospects of success, assessed as at the date of the offer; (e) the clarity with which the terms of the offer were expressed; and (f) whether the offer foreshadowed an application for indemnity costs in the event of the offerees rejecting it.10 24 Whether the rejection of the Calderbank offer was unreasonable must be assessed at the time the offer is rejected, not with the benefit of hindsight. The question is whether a reasonable party in Jako's position, giving proper consideration to the evidence to be adduced and properly advised about the law, should have assessed its prospects of obtaining a greater sum to be so low that it was unreasonable to reject the offer.11 Disposition 25 In my assessment, the plaintiff's case, as it was at the time of trial, was not strong. It became less strong, at least in some respects, as a result of forensic decisions made by the plaintiff not to adduce certain evidence in the course of the hearing. 9 Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115; (2009) 41 WAR 1 [16] - [18], [23] (Ford Motor Company). 10 Ford Motor Company [19]. 11 Currie v Currie [No 3] [2018] WASC 306 [13]. -- 6 of 8 -- [2026] WASC 158 (S) FORRESTER J Page 7 26 In addition, the plaintiff was unable to point to any authority which supported its position that an expert who made decisions which involved determinations of matters of credibility, or who relied on other expert evidence, was acting as an arbitrator to the exclusion of acting as an expert determiner. The plaintiff did not make any meaningful submissions as to the deeming provision in r 5(2) of the Expert Determination Rules.12 The plaintiff also did not, in my view, fully engage with the detailed reasons for the decision of the expert in its submissions, as opposed to the summary of those reasons which appeared at the start of the Expert Determination. 27 However, in this case, the positions of the parties were polarised. On the basis of the finalised pleadings, only one party could succeed. There was no argument that Jako could partly succeed, or that Perkins could partly succeed. 28 The first Calderbank offer offered little more than the status quo as determined by the Expert Determination, given that the offer was made on the basis that each party bear its own costs. The second Calderbank offer was an apparent increase on the first, in the sense that a further costs order in its favour was to be foregone by Perkins, but still required each party to bear its own costs, which must by then have increased. To that extent, the second Calderbank offer was only marginally more favourable than the first Calderbank offer. 29 Further, while Jako was unable to cite any authority to support its contentions regarding the point at which an expert might cease to be an expert determiner and instead become an arbitrator, Perkins was also unable to do so. The point was, in effect, somewhat novel. Accordingly, while I have found that the plaintiff's case was not a strong one, I am not prepared in the circumstances to say that it was not reasonably arguable. 30 I am, therefore, not prepared to find that, at the times that the Calderbank offers were rejected by Jako, it was unreasonable for it to do so, such that an award of indemnity costs is warranted. 31 Accordingly, I order that: (a) Jako pay Perkins' costs of the proceedings to be taxed if not agreed; and 12 Resolution Institute, Expert Determination Rules, Rules (2016). -- 7 of 8 -- [2026] WASC 158 (S) FORRESTER J Page 8 (b) Perkins pay Jako's costs of the costs application, to be taxed if not agreed. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. CA Associate to the Hon Justice Forrester 17 JUNE 2026 -- 8 of 8 --