Alstom Australia Ltd v NAP Acoustics Pty Ltd & Anor [2005] NSWSC 1010

Alstom Australia Ltd v NAP Acoustics Pty Ltd & Anor [2005] NSWSC 1010

Although the Plaintiff acted reasonably in joining and later discontinuing against the Second Defendant, it consciously took the litigious risk of joining a party as a fallback measure and ultimately accepted, on its available evidence, that the Second Defendant was not liable. The cost consequences of that decision should not be visited on the Second Defendant. The Second Defendant's offer of compromise did not justify indemnity costs because leave to discontinue with costs was not less favourable to the Plaintiff than a verdict for the Second Defendant with each party bearing its own costs.

Jurisdiction
Australia
Judgment Date
26 September 2005
Procedural Posture
Technology and Construction List Proceedings Concerning Leave to Discontinue and Costs / Plaintiff's Application for Leave to Discontinue Proceedings Against the Second Defendant
Outcome
Leave to discontinue granted; Plaintiff ordered to pay the Second Defendant's costs on a party/party basis; indemnity costs refused.
Legal Topics
['leave to Discontinue' 'costs on Discontinuance' 'indemnity Costs' 'offer of Compromise' 'joinder of Defendant' 'party/party Costs']
['civil Procedure' 'costs' 'construction Law'] ['leave to Discontinue' 'costs on Discontinuance' 'indemnity Costs' 'offer of Compromise' 'joinder of Defendant' 'party/party Costs']

Case Brief

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Procedural Posture

Technology and Construction List Proceedings Concerning Leave to Discontinue and Costs / Plaintiff's Application for Leave to Discontinue Proceedings Against the Second Defendant

Legal Issues

  1. 1 ['Whether the Plaintiff should be granted leave to discontinue the proceedings against the Second Defendant.' "Whether leave to discontinue should be granted on terms that the Plaintiff pay the Second Defendant's costs." "Whether the Second Defendant's costs should be ordered on an indemnity basis because of its offer of compromise."]

Ratio Decidendi

Although the Plaintiff acted reasonably in joining and later discontinuing against the Second Defendant, it consciously took the litigious risk of joining a party as a fallback measure and ultimately accepted, on its available evidence, that the Second Defendant was not liable. The cost consequences of that decision should not be visited on the Second Defendant. The Second Defendant's offer of compromise did not justify indemnity costs because leave to discontinue with costs was not less favourable to the Plaintiff than a verdict for the Second Defendant with each party bearing its own costs.

Court Disposition

Leave to discontinue granted; Plaintiff ordered to pay the Second Defendant's costs on a party/party basis; indemnity costs refused.

Orders

  • ['The Plaintiff is to have leave to discontinue against the Second Defendant.' "The Plaintiff is to pay the Second Defendant's costs on a party/party basis." "The Plaintiff must pay the Second Defendant's costs as assessed before being entitled to commence any fresh proceedings against the Second Defendant for the...