Brookfield Multiplex Limited v International Litigation Funding Partners Pte Ltd (No 4) [2009] FCA 803

Brookfield Multiplex Limited v International Litigation Funding Partners Pte Ltd (No 4) [2009] FCA 803

Indemnity costs were refused because the defendants' early walk away offer did not involve a real and genuine compromise: it was made about 12 days after the last appearance was filed, during a period affected by Christmas, and the defendants did not prove that they had incurred substantial costs. In any event, the MIS action raised important and difficult issues about litigation funding in the Australian litigation market, and it was in the public interest that those issues be resolved, so the plaintiffs' decision to proceed was not unreasonable and should not be punished by a special costs order.

Jurisdiction
Australia
Judgment Date
03 August 2009
Procedural Posture
Costs Application / Defendants' Application for Indemnity Costs After Plaintiffs Failed in the MIS Action
Outcome
Defendants' application for indemnity costs refused.
Legal Topics
['indemnity Costs' 'offer of Compromise' 'calderbank Offer' 'walk Away Offer' 'managed Investment Scheme']
['civil Procedure' 'costs' 'corporations'] ['indemnity Costs' 'offer of Compromise' 'calderbank Offer' 'walk Away Offer' 'managed Investment Scheme']

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Procedural Posture

Costs Application / Defendants' Application for Indemnity Costs After Plaintiffs Failed in the MIS Action

Legal Issues

  1. 1 ['Whether the defendants were entitled to indemnity costs from the date of their unaccepted offer of compromise.' 'Whether a walk away offer made shortly after appearances were filed was a genuine offer of compromise for costs purposes.' 'Whether it was unreasonable for the plaintiffs to proceed with litigation raising the legality of litigation funding arrangements as managed investment schemes.']

Ratio Decidendi

Indemnity costs were refused because the defendants' early walk away offer did not involve a real and genuine compromise: it was made about 12 days after the last appearance was filed, during a period affected by Christmas, and the defendants did not prove that they had incurred substantial costs. In any event, the MIS action raised important and difficult issues about litigation funding in the Australian litigation market, and it was in the public interest that those issues be resolved, so the plaintiffs' decision to proceed was not unreasonable and should not be punished by a special costs order.

Court Disposition

Defendants' application for indemnity costs refused.

Orders

  • ["The defendants' application for indemnity costs be refused." "The defendants pay the plaintiffs' costs of and incidental to this application to be taxed in default of agreement."]