Brecher v Barrack Investments Pty Limited (No 3) [2020] FCA 1331

Brecher v Barrack Investments Pty Limited (No 3) [2020] FCA 1331

The Court held that no special or unusual circumstances justified indemnity costs. The rejection of Dr Brecher's evidence and adverse credibility findings, use of Facebook messages to refresh memory, non-attendance on the sixth hearing day, and lengthy answers in cross-examination did not warrant indemnity costs. The applicants' rejection of the Calderbank offer was not unreasonable because the first to third respondents' offer could only be accepted with the fourth and fifth respondents' offer, the offers were detailed and complex, the hearing was imminent, the applicants would have needed to arrange payment and legal advice concerning the ANZ debt, and Dr Brecher disputed or may have...

Jurisdiction
Australia
Judgment Date
17 September 2020
Procedural Posture
Application for a Different Order as to Costs, Including Indemnity Costs / Determined on the Papers After Dismissal of the Applicants' Claims and the Respondents' Cross Claim
Outcome
The first to third respondents' application for a different order as to costs was dismissed.
Legal Topics
['indemnity Costs' 'calderbank Offer' 'party and Party Costs' 'cross Claim Costs' 'commercial Contracts, Banking, Finance and Insurance']
['costs' 'commercial and Corporations'] ['indemnity Costs' 'calderbank Offer' 'party and Party Costs' 'cross Claim Costs' 'commercial Contracts, Banking, Finance and Insurance']

Case Brief

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Procedural Posture

Application for a Different Order as to Costs, Including Indemnity Costs / Determined on the Papers After Dismissal of the Applicants' Claims and the Respondents' Cross Claim

Legal Issues

  1. 1 ["Whether the applicants should pay the first to third respondents' costs of the proceedings on an indemnity basis because it was unreasonable for the respondents to be subjected to any costs." "Whether the applicants' failure to accept the first to third respondents' Calderbank offer dated 21 August 2019 was unreasonable." "Whether, if indemnity costs were refused, the applicants should pay the first to third respondents' costs of the proceedings on a party and party basis." "Whether there should be no order as to the costs of the respondents' cross-claim."]

Ratio Decidendi

The Court held that no special or unusual circumstances justified indemnity costs. The rejection of Dr Brecher's evidence and adverse credibility findings, use of Facebook messages to refresh memory, non-attendance on the sixth hearing day, and lengthy answers in cross-examination did not warrant indemnity costs. The applicants' rejection of the Calderbank offer was not unreasonable because the first to third respondents' offer could only be accepted with the fourth and fifth respondents' offer, the offers were detailed and complex, the hearing was imminent, the applicants would have needed to arrange payment and legal advice concerning the ANZ debt, and Dr Brecher disputed or may have...

Court Disposition

The first to third respondents' application for a different order as to costs was dismissed.

Orders

  • ["The first to third respondents' application for a different order as to costs be dismissed." "The first to third respondents pay the applicants' cost of the application for a different order as to costs on a party and party basis."]