Elanor Funds Management Ltd v Alceon Group Pty Ltd (No 2) [2023] FCA 1608

Elanor Funds Management Ltd v Alceon Group Pty Ltd (No 2) [2023] FCA 1608

It was unreasonable for the applicant not to accept the settlement offers of 3 June 2023 (first respondent) and 23 June 2023 (joint offer), given they had the benefit of all relevant evidence and were aware of significant weaknesses in their case regarding misleading conduct, causation and damages. Thus, indemnity costs are warranted from those dates for the respective respondents.

Parties
Applicant: Elanor Funds Management Limited; First Respondent: Alceon Group Pty Ltd; Second Respondent: CPRAM Investments Pty Ltd
Jurisdiction
Australia
Judgment Date
15 December 2023
Procedural Posture
Costs Application / Post Trial (following Dismissal of Applicant's Proceeding)
Outcome
Applicant to pay each respondent's costs—with specified periods on party-party and indemnity basis.
Legal Topics
Costs, Indemnity Costs, Calderbank Offers, Settlement Offers, Admissibility of Evidence
Commercial Law Civil Procedure Costs Indemnity Costs Calderbank Offers Settlement Offers Admissibility of Evidence

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Parties

Elanor Funds Management Limited

Applicant

Alceon Group Pty Ltd

First Respondent

CPRAM Investments Pty Ltd

Second Respondent

Procedural Posture

Costs Application / Post Trial (following Dismissal of Applicant's Proceeding)

Legal Issues

  1. 1 Whether respondents should be awarded indemnity costs based on pre-litigation and Calderbank correspondence
  2. 2 Admissibility of settlement proposals made at mediation for the purpose of costs

Ratio Decidendi

It was unreasonable for the applicant not to accept the settlement offers of 3 June 2023 (first respondent) and 23 June 2023 (joint offer), given they had the benefit of all relevant evidence and were aware of significant weaknesses in their case regarding misleading conduct, causation and damages. Thus, indemnity costs are warranted from those dates for the respective respondents.

Court Disposition

Applicant to pay each respondent's costs—with specified periods on party-party and indemnity basis.

Orders

  • Applicant to pay first respondent's costs as between party and party to 3 June 2023, then on an indemnity basis from 4 June 2023.
  • Applicant to pay second respondent's costs as between party and party to 23 June 2023, then on an indemnity basis from 24 June 2023.