Optus v Leighton & Ors [2002] NSWSC 450

Optus v Leighton & Ors [2002] NSWSC 450

Tyco unreasonably failed to settle or facilitate the exit of minor parties despite realistic offers of settlement, was the main obstacle to settlement, and adopted and maintained positions lacking substantive merit. This conduct warrants departure from the usual rule as to costs, justifying orders for indemnity costs against Tyco from 23 January 2001 and Bullock orders in respect of certain costs against other defendants. Offers of compromise and Calderbank letters, even if procedurally defective, may be considered in exercising the costs discretion.

Jurisdiction
Australia
Judgment Date
17 May 2002
Procedural Posture
Civil (construction/contract) / Post Trial (costs Orders)
Outcome
Indemnity costs and Bullock orders made as set out in paragraph 106.
Legal Topics
['costs' 'indemnity Costs' 'bullock Orders' 'offers of Compromise' 'calderbank Offers' 'contractual Indemnities' 'contribution and Apportionment']
['civil Procedure' 'construction Law'] ['costs' 'indemnity Costs' 'bullock Orders' 'offers of Compromise' 'calderbank Offers' 'contractual Indemnities' 'contribution and Apportionment']

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Procedural Posture

Civil (construction/contract) / Post Trial (costs Orders)

Legal Issues

  1. 1 ['Whether indemnity costs should be ordered against certain defendants' 'Whether Bullock orders should be made for costs' 'Application and effect of offers of compromise and Calderbank letters to costs orders' 'Whether conduct of parties (particularly Tyco) justified departure from usual costs orders']

Ratio Decidendi

Tyco unreasonably failed to settle or facilitate the exit of minor parties despite realistic offers of settlement, was the main obstacle to settlement, and adopted and maintained positions lacking substantive merit. This conduct warrants departure from the usual rule as to costs, justifying orders for indemnity costs against Tyco from 23 January 2001 and Bullock orders in respect of certain costs against other defendants. Offers of compromise and Calderbank letters, even if procedurally defective, may be considered in exercising the costs discretion.

Court Disposition

Indemnity costs and Bullock orders made as set out in paragraph 106.

Orders

  • ['Indemnity costs ordered against Tyco (third defendant) in favour of Optus (from 23 January 2001).' 'EMAE and WorkCover to have costs assessed on an indemnity basis against Tyco.' 'Bullock order: Optus entitled to recover from Tyco and Leighton the costs payable to NDY (second defendant).' 'Judgment for first...