Mervyn Christopher McFarland & Anor v Common Australia Pty Ltd (No 2) [2018] NSWDC 427

Indemnity costs are appropriate from a reasonable time after a formal, clear, and properly identified offer of compromise was made, given the offer was more favourable than the outcome, and the plaintiffs could have reasonably assessed and responded at that stage.

Parties: First Plaintiff/first Cross Defendant: Mervyn Christopher McFarland; Second Plaintiff/second Cross Defendant: Wendy Ann Miller; Defendant/cross Claimant: Common Australia Pty Ltd
Jurisdiction: Australia
Judgment Date: 07 September 2018
Procedural Posture: Civil / Costs Orders After Judgment
Outcome: Costs awarded
Legal Topics: Indemnity Costs, Adequacy of Offers, Offers of Compromise, Calderbank Offers

Costs Indemnity Costs Adequacy of Offers Offers of Compromise Calderbank Offers

Case Brief

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Parties

Mervyn Christopher McFarland

First Plaintiff/first Cross Defendant

Wendy Ann Miller

Second Plaintiff/second Cross Defendant

Common Australia Pty Ltd

Defendant/cross Claimant

Procedural Posture

Civil / Costs Orders After Judgment

Legal Issues

1 Whether indemnity costs should be awarded
2 Adequacy and timing of offers made by the defendant/cross-claimant
3 Effect of jurisdictional limits on costs orders

Ratio Decidendi

Court Disposition

Costs awarded

Orders

First plaintiff to pay the costs of the defendant and cross-claimant on the ordinary basis until 26 July 2018 and thereafter on an indemnity basis.
Second plaintiff to pay the costs of the defendant/cross-claimant on the ordinary basis.