Barecall Pty Ltd v Hoban & Ors (No 2) [2010] NSWCA 304

Barecall Pty Ltd v Hoban & Ors (No 2) [2010] NSWCA 304

The indemnity costs orders below were set aside because the offers relied on were not offers under the Rules and, in the circumstances, it was not unreasonable for the plaintiff not to accept them. The $12,000 offer by the fifth defendant was too small, in light of the arguable nature of the claim, to support a finding that rejection was unreasonable. The $180,000 oral offer was made against a background casting reasonable doubt on whether it was genuine and could be paid. However, the primary judge did not err in refusing indemnity costs from the commencement of proceedings because the plaintiff's claims were not shown to be hopeless from the outset.

Jurisdiction
Australia
Judgment Date
12 November 2010
Procedural Posture
Costs; Consequential Orders / Court of Appeal on the Papers After Dismissal of Appeal, Determining Costs Below and on Appeal
Outcome
The Court set aside the indemnity costs orders made below and substituted party-party costs orders for the first, second, third and fifth defendants; the appellant was ordered to pay the respondents' costs of the appeal except for the costs argument concerning proceedings below.
Legal Topics
['indemnity Costs' 'offer of Compromise' 'reasonableness of Rejection' 'consequential Orders']
['civil Procedure' 'costs'] ['indemnity Costs' 'offer of Compromise' 'reasonableness of Rejection' 'consequential Orders']

Case Brief

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Procedural Posture

Costs; Consequential Orders / Court of Appeal on the Papers After Dismissal of Appeal, Determining Costs Below and on Appeal

Legal Issues

  1. 1 ['Whether the primary judge erred in awarding indemnity costs to the fifth defendant from 1 November 2007 based on a settlement offer of $12,000.' 'Whether the primary judge erred in awarding indemnity costs to the first, second and third defendants from 8 February 2008 based on an oral offer of $180,000.' "Whether indemnity costs should have been awarded from the commencement of the proceedings on the basis that the plaintiff's case was hopeless." 'Whether the offers relied on, which were not offers under the Uniform Civil Procedures Rules 2005, made it unreasonable for the plaintiff not to accept them.']

Ratio Decidendi

The indemnity costs orders below were set aside because the offers relied on were not offers under the Rules and, in the circumstances, it was not unreasonable for the plaintiff not to accept them. The $12,000 offer by the fifth defendant was too small, in light of the arguable nature of the claim, to support a finding that rejection was unreasonable. The $180,000 oral offer was made against a background casting reasonable doubt on whether it was genuine and could be paid. However, the primary judge did not err in refusing indemnity costs from the commencement of proceedings because the plaintiff's claims were not shown to be hopeless from the outset.

Court Disposition

The Court set aside the indemnity costs orders made below and substituted party-party costs orders for the first, second, third and fifth defendants; the appellant was ordered to pay the respondents' costs of the appeal except for the costs argument concerning proceedings below.

Orders

  • ["Set aside the orders of the Court made on 3 December 2009 in relation to the costs of proceedings below and in lieu thereof order that the plaintiff pay the first, second, third and fifth defendants' costs of the proceedings." "The appellant pay the respondents' costs of the appeal, with the exception of the...