Imbree v McNeilly [No 2] [2008] HCA 47

Imbree v McNeilly [No 2] [2008] HCA 47

Where the judgment sum exceeds all offers made by the plaintiff, and settlement was not achieved, indemnity costs are appropriate following those offers from the relevant date at each stage of litigation.

Parties
Appellant/respondent/cross Appellant/plaintiff: Paul Anthony Imbree; Respondent/applicant/cross Respondent/defendant: Jessie McNeilly; Respondent/cross Respondent/defendant: Qantas Airways Ltd
Jurisdiction
Australia
Judgment Date
26 September 2008
Procedural Posture
Appeal and Cross Appeal / Orders Following Reasons for Judgment and Quantification of Damages and Costs
Outcome
Appeal dismissed, cross-appeal allowed; orders for damages and costs made in accordance with parties' agreement and legal principle
Legal Topics
Costs, Offers of Compromise, Calderbank Offers, Contributory Negligence, Assessment of Damages
Civil Procedure Torts Costs Offers of Compromise Calderbank Offers Contributory Negligence Assessment of Damages

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Parties

Paul Anthony Imbree

Appellant/respondent/cross Appellant/plaintiff

Jessie McNeilly

Respondent/applicant/cross Respondent/defendant

Qantas Airways Ltd

Respondent/cross Respondent/defendant

Procedural Posture

Appeal and Cross Appeal / Orders Following Reasons for Judgment and Quantification of Damages and Costs

Legal Issues

  1. 1 What effect should be given to offers of compromise and Calderbank offers in determining orders for costs?
  2. 2 How should damages and costs be assessed when the judgment is more favourable than any offer made by the plaintiff?
  3. 3 What are the appropriate consequential orders following reasons for judgment where there was contributory negligence and negotiations over costs?

Ratio Decidendi

Where the judgment sum exceeds all offers made by the plaintiff, and settlement was not achieved, indemnity costs are appropriate following those offers from the relevant date at each stage of litigation.

Court Disposition

Appeal dismissed, cross-appeal allowed; orders for damages and costs made in accordance with parties' agreement and legal principle

Orders

  • The orders of the Court of Appeal of the Supreme Court of New South Wales made on 2 July 2007 and 23 July 2007 are set aside.
  • The appeal is dismissed and cross-appeal is allowed.