Hardingham v RP Data Pty Limited (No 2) [2021] FCAFC 175

Hardingham v RP Data Pty Limited (No 2) [2021] FCAFC 175

RP Data Pty Limited's rejection of the 'without prejudice save as to costs' offer was imprudent and unreasonable, warranting an order for indemnity costs from the time of rejection; Realestate.com.au Pty Ltd is entitled to its costs of the cross-appeal as RP Data was responsible for its involvement.

Parties
First Appellant and Third Cross Respondent: James Kelland Hardingham; Second Appellant and First Cross Respondent: Real Estate Marketing Australia Pty Ltd; First Respondent and Second Cross Respondent: RP Data Pty Limited; Second Respondent and Cross Appellant: Realestate.com.au Pty Ltd
Jurisdiction
Australia
Judgment Date
01 October 2021
Procedural Posture
Appeal and Cross Appeal / Costs Determination Following Substantive Judgment
Outcome
Costs orders made; appellants awarded indemnity costs from 14 April 2020; REA awarded costs of cross-appeal.
Legal Topics
Costs, Indemnity Costs, Calderbank Offers, Copyright
Practice and Procedure Intellectual Property Costs Indemnity Costs Calderbank Offers Copyright

Case Brief

Summary, issues, holding and outcome

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Parties

James Kelland Hardingham

First Appellant and Third Cross Respondent

Real Estate Marketing Australia Pty Ltd

Second Appellant and First Cross Respondent

RP Data Pty Limited

First Respondent and Second Cross Respondent

Realestate.com.au Pty Ltd

Second Respondent and Cross Appellant

Procedural Posture

Appeal and Cross Appeal / Costs Determination Following Substantive Judgment

Legal Issues

  1. 1 Whether costs should be paid on an indemnity basis following rejection of offer of settlement
  2. 2 Whether the offer was compliant with the Calderbank v Calderbank principles
  3. 3 Whether rejection of the offer was imprudent or unreasonable

Ratio Decidendi

RP Data Pty Limited's rejection of the 'without prejudice save as to costs' offer was imprudent and unreasonable, warranting an order for indemnity costs from the time of rejection; Realestate.com.au Pty Ltd is entitled to its costs of the cross-appeal as RP Data was responsible for its involvement.

Court Disposition

Costs orders made; appellants awarded indemnity costs from 14 April 2020; REA awarded costs of cross-appeal.

Orders

  • The first respondent pay the appellants' costs of the appeal and, if any, the cross-appeal, on a party and party basis up to 11:00am on 14 April 2020, and thereafter on an indemnity basis.
  • The second cross respondent pay the cross-appellant's costs of the cross-appeal.