Chowder Bay Pty Ltd v Paganin (No 2) [2017] FCA 892

Chowder Bay Pty Ltd v Paganin (No 2) [2017] FCA 892

The applicants' failure to accept the settlement offers made by the third and fourth respondents was unreasonable in the circumstances. The offers were reasonable, made at an appropriate time when the relevant evidentiary and legal issues were known, and the applicants were sufficiently apprised of the major risks in their case. No valid reasons were advanced to show the offers were unreasonably refused, nor was ambiguity with the offer terms raised with the respondents. Therefore, the third and fourth respondents are entitled to costs on a party and party basis up to 11am on 17 November 2015 and on an indemnity basis thereafter.

Parties
First Applicant: Chowder Bay Pty Ltd ACN 008 898 959; Second Applicant: Mark Patterson; Third Applicant: Badenport Pty Ltd ACN 008 931 842; Fourth Applicant: Leseur Pty Ltd ACN 052 291 639; Fifth Applicant: Teddoro Del Borello; Sixth Applicant: Arredo Pty Ltd ACN 009 256 606; First Respondent: David Arthur Paganin; Second Respondent: Charles William Edward Robertson; Third Respondent: m3property (WA) Pty Ltd ACN 074 470 563; Fourth Respondent: Blake William Smith
Jurisdiction
Australia
Judgment Date
04 August 2017
Procedural Posture
Costs Application / Post Judgment—costs Determination
Outcome
Application granted—costs ordered as sought by third and fourth respondents
Legal Topics
Costs, Offers of Settlement, Indemnity Costs
Civil Procedure Costs Offers of Settlement Indemnity Costs

Case Brief

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Parties

Chowder Bay Pty Ltd ACN 008 898 959

First Applicant

Mark Patterson

Second Applicant

Badenport Pty Ltd ACN 008 931 842

Third Applicant

Leseur Pty Ltd ACN 052 291 639

Fourth Applicant

Teddoro Del Borello

Fifth Applicant

Arredo Pty Ltd ACN 009 256 606

Sixth Applicant

David Arthur Paganin

First Respondent

Charles William Edward Robertson

Second Respondent

m3property (WA) Pty Ltd ACN 074 470 563

Third Respondent

Blake William Smith

Fourth Respondent

Procedural Posture

Costs Application / Post Judgment—costs Determination

Legal Issues

  1. 1 Whether the applicants unreasonably failed to accept settlement offers made by the third and fourth respondents and whether indemnity costs should be ordered

Ratio Decidendi

The applicants' failure to accept the settlement offers made by the third and fourth respondents was unreasonable in the circumstances. The offers were reasonable, made at an appropriate time when the relevant evidentiary and legal issues were known, and the applicants were sufficiently apprised of the major risks in their case. No valid reasons were advanced to show the offers were unreasonably refused, nor was ambiguity with the offer terms raised with the respondents. Therefore, the third and fourth respondents are entitled to costs on a party and party basis up to 11am on 17 November 2015 and on an indemnity basis thereafter.

Court Disposition

Application granted—costs ordered as sought by third and fourth respondents

Orders

  • The applicants pay the costs of the third and fourth respondents up to 11am on 17 November 2015, on a party and party basis.
  • The applicants pay the costs of the third and fourth respondents after 11am on 17 November 2015, on an indemnity basis.