Australian Executor Trustees Limited v Propell National Valuers (WA) Pty Ltd (No 2) [2011] FCA 966

Australian Executor Trustees Limited v Propell National Valuers (WA) Pty Ltd (No 2) [2011] FCA 966

The respondents' rejection of the applicants' 16 February 2011 settlement offer was unreasonable because the offer represented a substantial compromise, the respondents lacked real prospects of success on the findings made, the respondents' position relying on retrospective valuation evidence using post-dated sales data was bound to fail, reliance and loss were logically inferable, the offer was clear, and the absence of an express foreshadowing of indemnity costs did not prevent an award of indemnity costs.

Jurisdiction
Australia
Judgment Date
22 August 2011
Procedural Posture
Special Costs Application for Indemnity Costs Following Judgment for the First Applicant / Determined on the Papers
Outcome
Application for special costs order allowed; respondents ordered to pay party and party costs up to and including 15 February 2011 and indemnity costs from 16 February 2011.
Legal Topics
['indemnity Costs' 'calderbank Offer' 'offer to Compromise' 'unreasonable Rejection of Settlement Offer' 'federal Court Costs Discretion']
['costs' 'civil Procedure'] ['indemnity Costs' 'calderbank Offer' 'offer to Compromise' 'unreasonable Rejection of Settlement Offer' 'federal Court Costs Discretion']

Case Brief

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Procedural Posture

Special Costs Application for Indemnity Costs Following Judgment for the First Applicant / Determined on the Papers

Legal Issues

  1. 1 ["Whether the respondents' rejection of the applicants' offer to settle was unreasonable in the circumstances." "Whether the applicants should receive indemnity costs from 16 February 2011 under the Court's costs discretion."]

Ratio Decidendi

The respondents' rejection of the applicants' 16 February 2011 settlement offer was unreasonable because the offer represented a substantial compromise, the respondents lacked real prospects of success on the findings made, the respondents' position relying on retrospective valuation evidence using post-dated sales data was bound to fail, reliance and loss were logically inferable, the offer was clear, and the absence of an express foreshadowing of indemnity costs did not prevent an award of indemnity costs.

Court Disposition

Application for special costs order allowed; respondents ordered to pay party and party costs up to and including 15 February 2011 and indemnity costs from 16 February 2011.

Orders

  • ["The respondents pay the applicants' costs to be taxed on a party and party basis, if not agreed, up to and including 15 February 2011." "The respondents pay the applicants' costs to be taxed on an indemnity basis from 16 February 2011."]