Metz Holdings Pty Ltd v Simmac Pty Ltd (No 3) [2011] FCA 1450

Metz Holdings Pty Ltd v Simmac Pty Ltd (No 3) [2011] FCA 1450

The Court held that the applicants had made an offer of compromise pursuant to O 23 r 11(4) which was not accepted and that the ultimate judgment, which included rescission and associated monetary remedies, was more favourable than the offer proposed. The respondents did not provide sufficient reasons or exceptional circumstances to displace the operation of the rule; therefore, indemnity costs from the date of the offer were appropriate.

Parties
First Applicants: Metz Holdings Pty Ltd (ACN 059 264 210) as Trustee for the Zulu Trust and Group M Pty Ltd (ACN 118 506 148) as Trustee for the Roubaix Trust; Second Applicant: Mervin Metz; Third Applicant: Farrel Metz; First Respondent: Simmac Pty Ltd (ACN 062 327 397); Second Respondent: Paul Campbell Sim; Third Respondent: Linda McBrierty; Fourth Respondent: Linda McBrierty and Edward Hugh Jennings as Trustees for the Linda McBrierty Superannuation Fund
Jurisdiction
Australia
Judgment Date
15 December 2011
Procedural Posture
Civil / Costs Determination Following Judgment
Outcome
Indemnity costs awarded from 23 February 2011; party and party costs prior to that date.
Legal Topics
Indemnity Costs, Offer of Compromise, Misleading or Deceptive Conduct
Costs Trade Practices Contracts Indemnity Costs Offer of Compromise Misleading or Deceptive Conduct

Case Brief

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Parties

Metz Holdings Pty Ltd (ACN 059 264 210) as Trustee for the Zulu Trust and Group M Pty Ltd (ACN 118 506 148) as Trustee for the Roubaix Trust

First Applicants

Mervin Metz

Second Applicant

Farrel Metz

Third Applicant

Simmac Pty Ltd (ACN 062 327 397)

First Respondent

Paul Campbell Sim

Second Respondent

Linda McBrierty

Third Respondent

Linda McBrierty and Edward Hugh Jennings as Trustees for the Linda McBrierty Superannuation Fund

Fourth Respondent

Procedural Posture

Civil / Costs Determination Following Judgment

Legal Issues

  1. 1 Whether the applicants are entitled to indemnity costs pursuant to O 23 r 11(4) of the Federal Court Rules 1979 (Cth) after making an offer of compromise that was not accepted.
  2. 2 Whether the respondents demonstrated proper reasons to displace the operation of O 23 r 11(4) and avoid an indemnity costs order.

Ratio Decidendi

The Court held that the applicants had made an offer of compromise pursuant to O 23 r 11(4) which was not accepted and that the ultimate judgment, which included rescission and associated monetary remedies, was more favourable than the offer proposed. The respondents did not provide sufficient reasons or exceptional circumstances to displace the operation of the rule; therefore, indemnity costs from the date of the offer were appropriate.

Court Disposition

Indemnity costs awarded from 23 February 2011; party and party costs prior to that date.

Orders

  • The first and second respondents pay the applicants' costs of the proceedings, including reserved costs, on a party and party basis until 23 February 2011 and thereafter on an indemnity basis.