Windrum and Anor v Matrix Healthcare Pty Ltd t-as Combined Pathology and Anor (No 3) [2009] NSWIRComm 78

Windrum and Anor v Matrix Healthcare Pty Ltd t-as Combined Pathology and Anor (No 3) [2009] NSWIRComm 78

The respondents' third offer of $100,000 plus costs on 31 August 2007 was a reasonable offer and it was unreasonable for the appellants to reject it, thereby needlessly prolonging the proceedings. The earlier offers were not adopted as the costs trigger, and although rejection of the later higher offers was completely unreasonable, indemnity costs were not appropriate because the appellants ultimately succeeded on appeal. The appellants were therefore entitled to party and party costs up to and including 31 August 2007, and the respondents were entitled to party and party costs thereafter up to 14 December 2007. For the appeal, justice was best served by each party bearing its own costs....

Jurisdiction
Australia
Judgment Date
26 May 2009
Procedural Posture
Application by the Appellants for Leave to Appeal and Appeal Against Dismissal of a Summons Seeking Relief Under S 106 of the Industrial Relations Act 1996; Judgment on Costs / Full Bench Determination of Costs After Leave to Appeal Was Granted, Appeal Upheld, and Relief Quantified
Outcome
Costs determined: appellants awarded party and party costs up to 31 August 2007; respondents awarded party and party costs thereafter up to 14 December 2007; each party to bear its own appeal costs; set off permitted if available.
Legal Topics
['costs at First Instance and on Appeal' 'offers of Compromise' 'calderbank Offers' 'party and Party Costs' 'indemnity Costs' 'set Off' 'relief Under S 106 of the Industrial Relations Act 1996']
['industrial Law' 'costs' 'unfair Contracts'] ['costs at First Instance and on Appeal' 'offers of Compromise' 'calderbank Offers' 'party and Party Costs' 'indemnity Costs' 'set Off' 'relief Under S 106 of the Industrial Relations Act 1996']

Case Brief

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Procedural Posture

Application by the Appellants for Leave to Appeal and Appeal Against Dismissal of a Summons Seeking Relief Under S 106 of the Industrial Relations Act 1996; Judgment on Costs / Full Bench Determination of Costs After Leave to Appeal Was Granted, Appeal Upheld, and Relief Quantified

Legal Issues

  1. 1 ["Whether the appellants unreasonably rejected the respondents' offers of compromise made at first instance." 'Whether the respondents should receive party and party costs or indemnity costs after the appellants rejected the third, fourth and fifth offers.' 'Whether offers of compromise made at first instance remained effective for the costs of the appeal.' 'Whether the appellants should receive indemnity costs on appeal because of their sixth offer.' 'Whether the respondents should be permitted to set off costs against costs payable to the appellants and the judgment amount.']

Ratio Decidendi

The respondents' third offer of $100,000 plus costs on 31 August 2007 was a reasonable offer and it was unreasonable for the appellants to reject it, thereby needlessly prolonging the proceedings. The earlier offers were not adopted as the costs trigger, and although rejection of the later higher offers was completely unreasonable, indemnity costs were not appropriate because the appellants ultimately succeeded on appeal. The appellants were therefore entitled to party and party costs up to and including 31 August 2007, and the respondents were entitled to party and party costs thereafter up to 14 December 2007. For the appeal, justice was best served by each party bearing its own costs....

Court Disposition

Costs determined: appellants awarded party and party costs up to 31 August 2007; respondents awarded party and party costs thereafter up to 14 December 2007; each party to bear its own appeal costs; set off permitted if available.

Orders

  • ["The respondents, within 14 days and after consultation with the appellants, shall file and serve short minutes of order reflecting the Court's determinations." "The respondents shall pay to the appellants their costs in respect of their claim up to and including 31 August 2007 as agreed or assessed on a party and...