Rooney v ABB Grain Ltd (No 2) [2011] FCA 231

Rooney v ABB Grain Ltd (No 2) [2011] FCA 231

Before the offer, the proceeding involved three major issues on which the parties had mixed success: the applicant and cross-respondent succeeded on lawful termination of contracts one to eight, but failed on the ninth contract and on its Corporations Act declaration claim. Because the issues overlapped factually, costs were apportioned by percentage, with 60 per cent allocated to the applicant and cross-respondent's successful issue and 40 per cent to the respondent and cross-claimant's successful issues. The 1 April 2010 offer was a reasonable Calderbank offer; accepting it would have produced a better result for the applicant and cross-respondent than the trial outcome, and its...

Jurisdiction
Australia
Judgment Date
18 March 2011
Procedural Posture
Costs Application Following Trial of Claim and Cross Claim / Post Judgment Costs Determination
Outcome
Costs apportioned before 8 April 2010; indemnity costs awarded to the respondent and cross-claimant from 8 April 2010.
Legal Topics
['apportionment of Costs by Issues' 'offer of Compromise' 'calderbank Offer' 'indemnity Costs' 'party and Party Costs']
['civil Procedure' 'costs'] ['apportionment of Costs by Issues' 'offer of Compromise' 'calderbank Offer' 'indemnity Costs' 'party and Party Costs']

Case Brief

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Procedural Posture

Costs Application Following Trial of Claim and Cross Claim / Post Judgment Costs Determination

Legal Issues

  1. 1 ["How costs incurred before the respondent and cross-claimant's offer should reflect the parties' success and failure on separate issues." 'Whether the offer dated 1 April 2010 should be treated as an offer of compromise under O 23 of the Federal Court Rules or as a Calderbank offer.' "Whether the applicant and cross-respondent's non-acceptance of the 1 April 2010 offer was imprudent so as to justify indemnity costs after the offer."]

Ratio Decidendi

Before the offer, the proceeding involved three major issues on which the parties had mixed success: the applicant and cross-respondent succeeded on lawful termination of contracts one to eight, but failed on the ninth contract and on its Corporations Act declaration claim. Because the issues overlapped factually, costs were apportioned by percentage, with 60 per cent allocated to the applicant and cross-respondent's successful issue and 40 per cent to the respondent and cross-claimant's successful issues. The 1 April 2010 offer was a reasonable Calderbank offer; accepting it would have produced a better result for the applicant and cross-respondent than the trial outcome, and its...

Court Disposition

Costs apportioned before 8 April 2010; indemnity costs awarded to the respondent and cross-claimant from 8 April 2010.

Orders

  • ["The respondent and cross-claimant pay 60 per cent of the applicant and crossrespondent's costs of the proceeding assessed on a party and party basis for the period up to and including 7 April 2010 and the applicant and cross-respondent pay 40 per cent of the respondent and cross-claimant's costs of the proceeding...