Bignell Pty Ltd v Edenden t/a Everdry Waterproofing and Coatings [2004] NSWSC 288

Bignell Pty Ltd v Edenden t/a Everdry Waterproofing and Coatings [2004] NSWSC 288

The letter relied on by the defendants was not a proposal for compromise but a suggestion that the plaintiff entirely capitulate, and it was misconceived because the appeal could be and was satisfactorily conducted without the transcript. Apart from that letter, there was no misconduct or other conventional basis for indemnity costs; the plaintiff's arguments were not frivolous, vexatious or unarguable. The defendants were therefore not entitled to indemnity costs, and the costs of the substantive proceedings should be paid on a party/party basis.

Jurisdiction
Australia
Judgment Date
14 April 2004
Procedural Posture
Administrative Law Appeal Concerning an Order of the Fair Trading Tribunal / Application by the Defendants for Costs to Be Awarded on an Indemnity Basis After Dismissal of the Plaintiff's Appeal
Outcome
Application for indemnity costs dismissed; costs in the substantive proceedings to be paid on a party/party basis; plaintiff awarded costs of the subsequent costs proceedings on a party/party basis.
Legal Topics
['indemnity Costs' 'party/party Costs' 'offer of Compromise' 'appeal From Tribunal Decision' 'error of Law and Error of Fact']
['costs' 'administrative Law'] ['indemnity Costs' 'party/party Costs' 'offer of Compromise' 'appeal From Tribunal Decision' 'error of Law and Error of Fact']

Case Brief

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Procedural Posture

Administrative Law Appeal Concerning an Order of the Fair Trading Tribunal / Application by the Defendants for Costs to Be Awarded on an Indemnity Basis After Dismissal of the Plaintiff's Appeal

Legal Issues

  1. 1 ["Whether the defendants' costs of the dismissed appeal should be awarded on an indemnity basis rather than on a party/party basis." "Whether the defendants' letter dated 11 November 2002 was an offer of compromise whose rejection justified indemnity costs." 'Whether there was misconduct or other conduct by the plaintiff sufficient to justify indemnity costs.']

Ratio Decidendi

The letter relied on by the defendants was not a proposal for compromise but a suggestion that the plaintiff entirely capitulate, and it was misconceived because the appeal could be and was satisfactorily conducted without the transcript. Apart from that letter, there was no misconduct or other conventional basis for indemnity costs; the plaintiff's arguments were not frivolous, vexatious or unarguable. The defendants were therefore not entitled to indemnity costs, and the costs of the substantive proceedings should be paid on a party/party basis.

Court Disposition

Application for indemnity costs dismissed; costs in the substantive proceedings to be paid on a party/party basis; plaintiff awarded costs of the subsequent costs proceedings on a party/party basis.

Orders

  • ['The application for the costs already determined to be specified as being on an indemnity basis is dismissed.' 'The costs in the substantive proceedings should be paid on a party/party basis.' 'The plaintiff should have its costs of the subsequent proceedings in relation to costs on a party/party basis.']