Finishing Services Pty Ltd v Lactos Fresh Pty Ltd [2007] FCAFC 15

Finishing Services Pty Ltd v Lactos Fresh Pty Ltd [2007] FCAFC 15

Lactos Fresh unreasonably persisted in the cross-appeal because Colliers Victoria's Calderbank letter identified the insurmountable causation hurdle later accepted by the primary judge and by the Full Court: Lactos Fresh's loss was caused by its own failure to exercise its contractual rights, not by Colliers Victoria's advice. The refusal of the offer justified indemnity costs from the expiry date of the offer.

Jurisdiction
Australia
Judgment Date
22 February 2007
Procedural Posture
Federal Court Appeal Costs Application / Post Judgment Application to Vary Costs Order After Dismissal of Cross Appeal
Outcome
Costs order varied; Colliers Victoria awarded indemnity costs from 6 June 2006.
Legal Topics
['indemnity Costs' 'calderbank Offer' 'appeal Costs' 'unreasonable Refusal of Offer to Compromise']
['civil Procedure' 'costs'] ['indemnity Costs' 'calderbank Offer' 'appeal Costs' 'unreasonable Refusal of Offer to Compromise']

Case Brief

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Procedural Posture

Federal Court Appeal Costs Application / Post Judgment Application to Vary Costs Order After Dismissal of Cross Appeal

Legal Issues

  1. 1 ["Whether Lactos Fresh unreasonably refused Colliers Victoria's Calderbank offer to compromise the cross-appeal." "Whether the costs order made on 7 December 2006 should be varied so that Colliers Victoria's costs are taxed on an indemnity basis from expiry of the offer."]

Ratio Decidendi

Lactos Fresh unreasonably persisted in the cross-appeal because Colliers Victoria's Calderbank letter identified the insurmountable causation hurdle later accepted by the primary judge and by the Full Court: Lactos Fresh's loss was caused by its own failure to exercise its contractual rights, not by Colliers Victoria's advice. The refusal of the offer justified indemnity costs from the expiry date of the offer.

Court Disposition

Costs order varied; Colliers Victoria awarded indemnity costs from 6 June 2006.

Orders

  • ['The order numbered 5 made by this Court on 7 December 2006 will be varied by adding the words ", the second respondent\'s costs to be taxed on an indemnity basis on and from 6 June 2006".']