Good Living Company Pty Ltd as trustee for the Warren Duncan Trust No 3 v Kingsmede Pty Ltd (No 2) [2021] FCAFC 105

Good Living Company Pty Ltd as trustee for the Warren Duncan Trust No 3 v Kingsmede Pty Ltd (No 2) [2021] FCAFC 105

Indemnity costs were refused because the appellants were not imprudent or unreasonable in rejecting the offers: the issue of unconscionability involved developing jurisprudence, the appellants' argument was far from untenable although it failed, and the misconceived Competition and Consumer Act 2010 (Cth) Schedule 2 (Australian Consumer Law) s 20 case caused no additional costs.

Jurisdiction
Australia
Judgment Date
17 June 2021
Procedural Posture
Costs Application in Appeal / Interlocutory Application Filed After Judgment, Determined on the Papers
Outcome
Security for costs ordered to be paid to the respondents in partial discharge of costs; interlocutory application otherwise dismissed with costs; indemnity costs not awarded.
Legal Topics
['indemnity Costs' 'offers to Compromise' 'security for Costs' 'federal Court Rules']
['costs' 'civil Procedure'] ['indemnity Costs' 'offers to Compromise' 'security for Costs' 'federal Court Rules']

Case Brief

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Procedural Posture

Costs Application in Appeal / Interlocutory Application Filed After Judgment, Determined on the Papers

Legal Issues

  1. 1 ['Whether indemnity costs should be ordered based on offers to compromise made under rule 25.01 of the Federal Court Rules 2011 (Cth).' "Whether money held as security for the respondents' costs should be released to the respondents." 'Whether the appellants were imprudent or unreasonable in rejecting the offers.']

Ratio Decidendi

Indemnity costs were refused because the appellants were not imprudent or unreasonable in rejecting the offers: the issue of unconscionability involved developing jurisprudence, the appellants' argument was far from untenable although it failed, and the misconceived Competition and Consumer Act 2010 (Cth) Schedule 2 (Australian Consumer Law) s 20 case caused no additional costs.

Court Disposition

Security for costs ordered to be paid to the respondents in partial discharge of costs; interlocutory application otherwise dismissed with costs; indemnity costs not awarded.

Orders

  • ["On the undertaking of the respondents to repay amounts (if any) that are ultimately shown to have been overpaid, the appellants direct their solicitor, Keypoint Law, to pay the respondents the amount currently held as security for costs (namely, $177,500 plus any interest earned) in Keypoint Law's controlled...