Davids Holdings Pty Ltd v Coles Myer Ltd & Ors [1995] FCA 18

Davids Holdings Pty Ltd v Coles Myer Ltd & Ors [1995] FCA 18

Coles Myer was not entitled to indemnity costs because the circumstances did not demonstrate special or unusual features such as misconduct, lack of bona fides, or wilful disregard of law. The conduct of both parties was consistent with ordinary contested litigation, Coles Myer did not put Davids on notice it would seek indemnity costs, and prior judgments signalled Davids may have had arguable causes of action. Therefore, party and party costs remained appropriate.

Jurisdiction
Australia
Judgment Date
31 January 1995
Procedural Posture
Application for Indemnity Costs / Post Discontinuance Motion
Outcome
Application for indemnity costs dismissed with costs
Legal Topics
['indemnity Costs' 'costs Orders' 'discontinuance' 'security for Costs' 'practice and Procedure']
['civil Procedure'] ['indemnity Costs' 'costs Orders' 'discontinuance' 'security for Costs' 'practice and Procedure']

Case Brief

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Procedural Posture

Application for Indemnity Costs / Post Discontinuance Motion

Legal Issues

  1. 1 ['Circumstances in which indemnity costs should be awarded or refused on discontinuance of proceedings' "Whether Davids' conduct justified an award of indemnity costs to Coles Myer"]

Ratio Decidendi

Coles Myer was not entitled to indemnity costs because the circumstances did not demonstrate special or unusual features such as misconduct, lack of bona fides, or wilful disregard of law. The conduct of both parties was consistent with ordinary contested litigation, Coles Myer did not put Davids on notice it would seek indemnity costs, and prior judgments signalled Davids may have had arguable causes of action. Therefore, party and party costs remained appropriate.

Court Disposition

Application for indemnity costs dismissed with costs

Orders

  • ['The application filed by Coles Myer Limited on 22 December, 1993 is dismissed with costs.']