Daebo Shipping Co Ltd v The Ship Go Star (No 2) [2011] FCA 1544

Daebo Shipping Co Ltd v The Ship Go Star (No 2) [2011] FCA 1544

The plaintiff did not act unreasonably in rejecting the 3 June 2009 Calderbank offer because it was made early and was not a genuine attempt at compromise. The plaintiff did act unreasonably in rejecting the 20 April 2010 Calderbank offer because it was made after mediation, discovery and expert evidence, allowed 30...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
30 November 2011
Procedural Posture
Admiralty Proceeding / Defendant's Application for Indemnity Costs After Dismissal of the Plaintiff's Claim
Outcome
The defendant obtained a special costs order: the plaintiff was ordered to pay costs on a party-and-party basis before 11.00 am on 20 May 2010 and on an indemnity basis after that time, and to pay the costs of the application.
Legal Topics
['indemnity Costs' 'calderbank Offers' 'offer of Compromise' 'federal Court Rules' 'costs After Dismissal']
['admiralty' 'civil Procedure' 'costs'] ['indemnity Costs' 'calderbank Offers' 'offer of Compromise' 'federal Court Rules' 'costs After Dismissal']

Source-derived case record

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Procedural Posture

Admiralty Proceeding / Defendant's Application for Indemnity Costs After Dismissal of the Plaintiff's Claim

Legal Issues

  1. 1 ["Whether the plaintiff should pay the defendant's costs on an indemnity basis because it unreasonably rejected Calderbank offers of compromise." 'Whether the defendant was entitled to indemnity costs in relation to an offer of compromise under O 23 of the Federal Court Rules.' 'From what date any indemnity costs order should operate.']

Ratio Decidendi

The plaintiff did not act unreasonably in rejecting the 3 June 2009 Calderbank offer because it was made early and was not a genuine attempt at compromise. The plaintiff did act unreasonably in rejecting the 20 April 2010 Calderbank offer because it was made after mediation, discovery and expert evidence, allowed 30 days for consideration, offered USD160,000 in full and final settlement, identified the central defences on which the plaintiff later failed, and was a genuine compromise rather than a token offer. Costs were therefore payable on a party-and-party basis before 11.00 am on 20 May 2010 and on an indemnity basis thereafter.

Court Disposition

The defendant obtained a special costs order: the plaintiff was ordered to pay costs on a party-and-party basis before 11.00 am on 20 May 2010 and on an indemnity basis after that time, and to pay the costs of the application.

Orders

  • ["The plaintiff is to pay the defendant's costs in the action before 11.00 am on 20 May 2010 on a party-and-party basis." "The plaintiff is to pay the defendant's costs in the action after 11.00 am on 20 May 2010 on an indemnity basis." "The plaintiff is to pay the defendant's costs of this application."]