WSA Online Limited v Arms [2006] (No 2) FCAFC 108

WSA Online Limited v Arms [2006] (No 2) FCAFC 108

The Court ordered party and party costs only because it was not unreasonable for WSA or Messrs Houghton and Student to reject the Calderbank offers. The 9 February 2006 offer required agreement by multiple offerees, was not clearly less favourable to Mr Arms than the eventual outcome, and did not separate judgment, interest and costs. The offers to Messrs Houghton and Student required them to accept liability despite having succeeded at first instance. Interest and first instance costs were appropriately referred to the primary judge, and a costs certificate was granted because the Arms appeal succeeded on a question of law in circumstances where the respondents bore no responsibility for...

Jurisdiction
Australia
Judgment Date
05 July 2006
Procedural Posture
Costs on Appeals and Costs Certificate Application / Full Court of the Federal Court After Appeals, With Costs Reserved
Outcome
Mr Arms received party and party costs of both appeals; indemnity and solicitor/own client costs were refused; interest and first instance costs in the Arms proceeding were referred to the primary judge; Messrs Houghton and Student were granted a costs certificate.
Legal Topics
['calderbank Offers' 'indemnity Costs' 'solicitor/own Client Costs' 'party and Party Costs' 'costs Certificate' 'misleading or Deceptive Conduct']
['costs' 'civil Procedure' 'trade Practices'] ['calderbank Offers' 'indemnity Costs' 'solicitor/own Client Costs' 'party and Party Costs' 'costs Certificate' 'misleading or Deceptive Conduct']

Case Brief

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Procedural Posture

Costs on Appeals and Costs Certificate Application / Full Court of the Federal Court After Appeals, With Costs Reserved

Legal Issues

  1. 1 ['Whether Mr Arms should receive costs of the WSA appeal and the Arms appeal on an indemnity basis or solicitor/own client basis because of Calderbank letters dated 12 October 2005 and 9 February 2006.' 'Whether interest payable on the judgment against Messrs Houghton and Student and costs of the proceeding at first instance should be determined by the primary judge.' 'Whether Messrs Houghton and Student should be granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth).']

Ratio Decidendi

The Court ordered party and party costs only because it was not unreasonable for WSA or Messrs Houghton and Student to reject the Calderbank offers. The 9 February 2006 offer required agreement by multiple offerees, was not clearly less favourable to Mr Arms than the eventual outcome, and did not separate judgment, interest and costs. The offers to Messrs Houghton and Student required them to accept liability despite having succeeded at first instance. Interest and first instance costs were appropriately referred to the primary judge, and a costs certificate was granted because the Arms appeal succeeded on a question of law in circumstances where the respondents bore no responsibility for...

Court Disposition

Mr Arms received party and party costs of both appeals; indemnity and solicitor/own client costs were refused; interest and first instance costs in the Arms proceeding were referred to the primary judge; Messrs Houghton and Student were granted a costs certificate.

Orders

  • ["In VID 843 of 2005, the appellant pay the respondent's costs of the appeal on a party and party basis." "In VID 855 of 2005, the respondents pay the appellant's costs of the appeal on a party and party basis." 'In VID 855 of 2005, the issue of interest payable on the judgment, and of the costs of the proceeding at...