White v Baycorp Advantage Business Information Services [2006] NSWSC 910

White v Baycorp Advantage Business Information Services [2006] NSWSC 910

Indemnity costs were refused because the plaintiffs did not demonstrate that, taking the Calderbank offer as a whole, the third defendant was worse off than if it had accepted the offer, and because the offer inappropriately combined damages and costs. Although the plaintiffs succeeded in obtaining relief and costs would ordinarily follow the event, their late and circuitous articulation of the successful grounds and pursuit of numerous unsuccessful issues made it unfair to require the third defendant to pay all of their costs; a 75% costs order was appropriate.

Jurisdiction
Australia
Judgment Date
13 September 2006
Procedural Posture
Procedure Costs / Post Judgment Applications to Vary Costs Orders
Outcome
Indemnity costs refused; prior costs order set aside; third defendant ordered to pay 75% of the plaintiffs' costs of the proceedings, excluding specified notices of motion.
Legal Topics
['calderbank Letter' 'indemnity Costs' 'proportionate Costs Order' 'costs Follow the Event']
['civil Procedure' 'costs'] ['calderbank Letter' 'indemnity Costs' 'proportionate Costs Order' 'costs Follow the Event']

Case Brief

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Procedural Posture

Procedure Costs / Post Judgment Applications to Vary Costs Orders

Legal Issues

  1. 1 ["Whether the third defendant's rejection of the plaintiffs' Calderbank offer justified an order for indemnity costs." 'Whether the Calderbank offer was inappropriate because it rolled together damages and costs.' "Whether the plaintiffs' late and circuitous articulation of the successful grounds, and their failure on numerous issues, justified limiting the costs payable by the third defendant."]

Ratio Decidendi

Indemnity costs were refused because the plaintiffs did not demonstrate that, taking the Calderbank offer as a whole, the third defendant was worse off than if it had accepted the offer, and because the offer inappropriately combined damages and costs. Although the plaintiffs succeeded in obtaining relief and costs would ordinarily follow the event, their late and circuitous articulation of the successful grounds and pursuit of numerous unsuccessful issues made it unfair to require the third defendant to pay all of their costs; a 75% costs order was appropriate.

Court Disposition

Indemnity costs refused; prior costs order set aside; third defendant ordered to pay 75% of the plaintiffs' costs of the proceedings, excluding specified notices of motion.

Orders

  • ["Plaintiffs' Notice of Motion filed 18 May 2006 dismissed." "Order the plaintiffs to pay the third defendant's costs of that Notice of Motion." 'Order 4 made by me in these proceedings on 18 May 2006 be set aside.' "Order third defendant to pay 75% of the costs of the plaintiffs of the proceedings, other than the...