Adams v Groegor (No. 2) [2012] NSWDC 30

Adams v Groegor (No. 2) [2012] NSWDC 30

Neither indemnity costs application succeeded. The plaintiff's failed claim was not hopeless at its outset and its weakness became apparent only during trial from insufficient evidence, particularly expert evidence, rather than from the kind of hopelessness required by Fountain Selected Meats and J-Corp. The defendant's cross-claim also was not sufficiently hopeless, despite being withdrawn during trial. The plaintiff could not rely on the offer of compromise for indemnity costs because the offer related to the whole litigation, contained an invalid costs term for the main claim, was made too early to be a genuine compromise of the cross-claim, was not severable, and could not be treated...

Jurisdiction
Australia
Judgment Date
28 March 2012
Procedural Posture
Civil Costs Application Following Dismissal of Claim and Cross Claim / Applications to Vary Costs Orders Made on 23 December 2011
Outcome
Both applications for indemnity costs dismissed; each party to bear his own costs of the applications; prior costs orders confirmed except that the defendant must pay the plaintiff's costs occasioned by relisting the matter before Balla DCJ on 22 July 2011.
Legal Topics
['indemnity Costs' 'hopeless Case' 'offer of Compromise' 'calderbank Offer' 'severability of Settlement Offer' 'costs of Directions Hearing']
['civil Procedure' 'costs' 'contract' 'misleading or Deceptive Conduct'] ['indemnity Costs' 'hopeless Case' 'offer of Compromise' 'calderbank Offer' 'severability of Settlement Offer' 'costs of Directions Hearing']

Case Brief

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Procedural Posture

Civil Costs Application Following Dismissal of Claim and Cross Claim / Applications to Vary Costs Orders Made on 23 December 2011

Legal Issues

  1. 1 ["Whether the defendant should receive indemnity costs for successfully defending the plaintiff's claim on the basis that the claim was hopeless." "Whether the plaintiff should receive indemnity costs for the defendant's discontinued cross-claim on the basis that the cross-claim was hopeless." "Whether the plaintiff could rely on an offer of compromise concerning the cross-claim despite the offer also including an invalid costs term for the plaintiff's claim." 'Whether the offer concerning the cross-claim was severable or capable of operating as a Calderbank offer.' "Whether the defendant should pay the plaintiff's costs of the directions hearing before Balla DCJ on 22 July 2011."]

Ratio Decidendi

Neither indemnity costs application succeeded. The plaintiff's failed claim was not hopeless at its outset and its weakness became apparent only during trial from insufficient evidence, particularly expert evidence, rather than from the kind of hopelessness required by Fountain Selected Meats and J-Corp. The defendant's cross-claim also was not sufficiently hopeless, despite being withdrawn during trial. The plaintiff could not rely on the offer of compromise for indemnity costs because the offer related to the whole litigation, contained an invalid costs term for the main claim, was made too early to be a genuine compromise of the cross-claim, was not severable, and could not be treated...

Court Disposition

Both applications for indemnity costs dismissed; each party to bear his own costs of the applications; prior costs orders confirmed except that the defendant must pay the plaintiff's costs occasioned by relisting the matter before Balla DCJ on 22 July 2011.

Orders

  • ["Defendant's application for indemnity costs for the hearing of the claim brought by the plaintiff dismissed." "The plaintiff's application for indemnity costs in relation to the defendant's cross-claim dismissed." 'Each party bear his own costs of their respective applications.' "Costs orders (2) and (4) made on...