Barnes v Forty Two International Pty Limited (No 2) [2015] FCAFC 19

Barnes v Forty Two International Pty Limited (No 2) [2015] FCAFC 19

The appellants were not entitled to indemnity costs. The first Calderbank offer did involve genuine compromise, but the respondents were not given a reasonable time to assess it in a complex proceeding with claims and cross-claims, so refusal was not shown to be unreasonable. The second offer of compromise was open for 14 days and was more favourable to the respondents than the ultimate result, but the appellants still had to show unreasonable non-acceptance under r 25.14(2). That was not shown because the offer was close to trial, the proceedings were complicated, the respondents' principal claims were not without merit, the appellants failed on many issues and on their cross-claim, and...

Jurisdiction
Australia
Judgment Date
24 February 2015
Procedural Posture
Appeal Costs Decision / Costs Issues Consequential Upon Successful Appeal, Heard on the Papers
Outcome
No order for indemnity costs; costs ordered on the usual party and party basis, with set-off, and the originating application dismissed following the successful appeal.
Legal Topics
['indemnity Costs' 'calderbank Offer' 'offer of Compromise' 'walk Away Offers' 'costs Following the Event' 'set Off of Costs Orders']
['civil Procedure' 'costs'] ['indemnity Costs' 'calderbank Offer' 'offer of Compromise' 'walk Away Offers' 'costs Following the Event' 'set Off of Costs Orders']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal Costs Decision / Costs Issues Consequential Upon Successful Appeal, Heard on the Papers

Legal Issues

  1. 1 ['Whether the appellants should receive indemnity costs of the trial from 3 November 2012 based on a Calderbank offer.' 'Whether the appellants should receive indemnity costs of the trial from 15 November 2012 based on an offer of compromise under r 25.01 of the Federal Court Rules 2011 (Cth).' "Whether the respondents unreasonably refused the appellants' walk away offers." 'Whether costs payable in respect of the trial claim should be set off against costs payable in respect of the cross-claim.']

Ratio Decidendi

The appellants were not entitled to indemnity costs. The first Calderbank offer did involve genuine compromise, but the respondents were not given a reasonable time to assess it in a complex proceeding with claims and cross-claims, so refusal was not shown to be unreasonable. The second offer of compromise was open for 14 days and was more favourable to the respondents than the ultimate result, but the appellants still had to show unreasonable non-acceptance under r 25.14(2). That was not shown because the offer was close to trial, the proceedings were complicated, the respondents' principal claims were not without merit, the appellants failed on many issues and on their cross-claim, and...

Court Disposition

No order for indemnity costs; costs ordered on the usual party and party basis, with set-off, and the originating application dismissed following the successful appeal.

Orders

  • ["Paragraphs 1 and 2 of the orders made by Griffiths J on 14 March 2014 (as varied on 25 March 2014) be set aside and in lieu thereof it be ordered that the applicants' originating application (as amended from time to time) be dismissed." "Paragraph 4 of the orders made by Griffiths J on 14 March 2014 (as varied on...