Kupang Resources Pty Ltd v Commonwealth of Australia (No 3) [2023] NSWSC 1564

Kupang Resources Pty Ltd v Commonwealth of Australia (No 3) [2023] NSWSC 1564

Although the plaintiff's offer was a genuine offer of compromise, it was reasonable for the Commonwealth to reject it because the offer allowed Kupang to replace security at any time with an after the event insurance policy without identifying the principal terms of that policy and without giving the Commonwealth a right to reject the proposed policy. The offer was therefore not sufficiently clear to make rejection unreasonable, and indemnity costs were not warranted.

Jurisdiction
Australia
Judgment Date
14 December 2023
Procedural Posture
Costs of Notice of Motion for Additional Security for Costs / On the Papers; Costs Determination After Dismissal of the Defendant's Application for Additional Security for Costs
Outcome
The plaintiff was not entitled to indemnity costs; the defendant was ordered to pay the plaintiff's costs of the notice of motion on the ordinary basis.
Legal Topics
['party/party Costs' 'indemnity Costs' 'genuine Offer of Compromise' 'security for Costs' 'calderbank Offer']
['costs' 'civil Procedure'] ['party/party Costs' 'indemnity Costs' 'genuine Offer of Compromise' 'security for Costs' 'calderbank Offer']

Case Brief

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Procedural Posture

Costs of Notice of Motion for Additional Security for Costs / On the Papers; Costs Determination After Dismissal of the Defendant's Application for Additional Security for Costs

Legal Issues

  1. 1 ["Whether the plaintiff's offer served on 18 October 2023 was a genuine offer of compromise." 'Whether it was unreasonable for the defendant not to accept the offer, so as to justify indemnity costs from 19 October 2023.' 'Whether an offer permitting replacement of security with an after the event insurance policy without specifying the principal terms was sufficiently clear.']

Ratio Decidendi

Although the plaintiff's offer was a genuine offer of compromise, it was reasonable for the Commonwealth to reject it because the offer allowed Kupang to replace security at any time with an after the event insurance policy without identifying the principal terms of that policy and without giving the Commonwealth a right to reject the proposed policy. The offer was therefore not sufficiently clear to make rejection unreasonable, and indemnity costs were not warranted.

Court Disposition

The plaintiff was not entitled to indemnity costs; the defendant was ordered to pay the plaintiff's costs of the notice of motion on the ordinary basis.

Orders

  • ["The defendant pay the plaintiff's costs of the notice of motion filed on 5 September 2023 as agreed or assessed on the ordinary basis."]