BOFINGER & Anor v KINGSWAY GROUP PTY LTD & Ors (No. 2) [2009] NSWCA 172

BOFINGER & Anor v KINGSWAY GROUP PTY LTD & Ors (No. 2) [2009] NSWCA 172

The guarantors acted unreasonably in failing to seek the fifth to seventh respondents' agreement about disposal of the controlled moneys account and in failing to accept offers that would have removed those respondents from the appeal, where acceptance would have left the remaining issues to be determined between the guarantors and the first to third respondents and there was no evident purpose in retaining the fifth to seventh respondents as parties.

Jurisdiction
Australia
Judgment Date
02 July 2009
Procedural Posture
Costs Application in Appeal / On Written Submissions After Dismissal of Appeal
Outcome
Application for indemnity costs granted.
Legal Topics
['indemnity Costs' 'calderbank Offer' 'unreasonable Failure to Accept Offer']
['costs' 'civil Procedure'] ['indemnity Costs' 'calderbank Offer' 'unreasonable Failure to Accept Offer']

Case Brief

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Procedural Posture

Costs Application in Appeal / On Written Submissions After Dismissal of Appeal

Legal Issues

  1. 1 ["Whether the guarantors should pay the fifth to seventh respondents' costs on an indemnity basis because they failed to accept Calderbank offers." 'Whether the letters relied on by the fifth to seventh respondents were admissible and effective as Calderbank offers.' 'Whether the fifth to seventh respondents had to show special or unusual circumstances to obtain indemnity costs.']

Ratio Decidendi

The guarantors acted unreasonably in failing to seek the fifth to seventh respondents' agreement about disposal of the controlled moneys account and in failing to accept offers that would have removed those respondents from the appeal, where acceptance would have left the remaining issues to be determined between the guarantors and the first to third respondents and there was no evident purpose in retaining the fifth to seventh respondents as parties.

Court Disposition

Application for indemnity costs granted.

Orders

  • ['Costs payable by the guarantors to the fifth to seventh respondents on an indemnity basis from 7 December 2007.' "The guarantors pay the fifth to seventh respondents' costs of the application for indemnity costs."]