C & C Fisher Pty Ltd v Livadaras (No 2) [2010] FCA 181

C & C Fisher Pty Ltd v Livadaras (No 2) [2010] FCA 181

The applicants' rejection of the so-called Calderbank offer was not unreasonable as the offer was not a true Calderbank offer. The applicants’ case raised arguable factual and legal issues, and did not rise to the standard necessary for indemnity costs, as it was not hopeless, nor pursued with knowledge of falsity. The allegation of bad faith was relevant to the dispute and not knowingly false.

Jurisdiction
Australia
Judgment Date
17 February 2010
Procedural Posture
Application for Costs / Post Judgment (costs)
Outcome
Application for indemnity costs dismissed; costs awarded as specified in orders.
Legal Topics
['costs' 'indemnity Costs' 'calderbank Offer']
['civil Procedure'] ['costs' 'indemnity Costs' 'calderbank Offer']

Case Brief

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Procedural Posture

Application for Costs / Post Judgment (costs)

Legal Issues

  1. 1 ['Whether respondents are entitled to indemnity costs from the applicants' 'Whether rejection of Calderbank offer by applicants was unreasonable or imprudent' 'Whether applicants pursued allegations of bad faith amounting to equitable fraud without basis']

Ratio Decidendi

The applicants' rejection of the so-called Calderbank offer was not unreasonable as the offer was not a true Calderbank offer. The applicants’ case raised arguable factual and legal issues, and did not rise to the standard necessary for indemnity costs, as it was not hopeless, nor pursued with knowledge of falsity. The allegation of bad faith was relevant to the dispute and not knowingly false.

Court Disposition

Application for indemnity costs dismissed; costs awarded as specified in orders.

Orders

  • ["The applicants pay the respondents' costs of and incidental to these proceedings on a party and party basis." "The respondents pay the applicants' costs of this application for costs."]