Nyoni v Shire of Kellerberrin (No 11) [2018] FCA 1734

Nyoni v Shire of Kellerberrin (No 11) [2018] FCA 1734

The applicant had mixed success before 11am on 17 June 2014, including success on causes of action that were not insubstantial, so the fairest order for that period was no order as to costs. From 11am on 17 June 2014, the applicant obtained a judgment less favourable than the respondents' offer of compromise and had made an unrealistic rejection and counter-offer, so R 25.14(1) entitled the first and second respondents to indemnity costs. It was appropriate, fair and reasonable to set off those assessed costs against the damages award and continue the stay because the applicant was bankrupt and there was no likelihood of recovery absent set-off.

Jurisdiction
Australia
Judgment Date
13 November 2018
Procedural Posture
Costs Determination in Federal Court Civil Proceeding / Determined on the Papers After Remittal by the Full Court of Questions of Costs Between the Applicant and the First and Second Respondents Following Assessment of Damages
Outcome
No costs order was made for the period up to 11am on 17 June 2014; the applicant was ordered to pay the first and second respondents' costs on an indemnity basis from that time; the damages award was stayed pending costs assessment and set off against assessed costs.
Legal Topics
['offer to Compromise' 'indemnity Costs' 'set Off of Costs and Damages' 'stay of Damages Order' 'misfeasance in Public Office' 'mixed Success in Litigation']
['civil Procedure' 'costs' 'torts'] ['offer to Compromise' 'indemnity Costs' 'set Off of Costs and Damages' 'stay of Damages Order' 'misfeasance in Public Office' 'mixed Success in Litigation']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Costs Determination in Federal Court Civil Proceeding / Determined on the Papers After Remittal by the Full Court of Questions of Costs Between the Applicant and the First and Second Respondents Following Assessment of Damages

Legal Issues

  1. 1 ["Whether there should be an order for costs before 11am on 17 June 2014 given the applicant's mixed success in the proceeding." "Whether the applicant should pay the first and second respondents' costs on an indemnity basis from 11am on 17 June 2014 under R 25.14(1) of the Federal Court Rules 2011 (Cth)." 'Whether the damages award should be set off against the costs determined in favour of the first and second respondents.' 'Whether the stay of the damages order should continue pending assessment of costs.']

Ratio Decidendi

The applicant had mixed success before 11am on 17 June 2014, including success on causes of action that were not insubstantial, so the fairest order for that period was no order as to costs. From 11am on 17 June 2014, the applicant obtained a judgment less favourable than the respondents' offer of compromise and had made an unrealistic rejection and counter-offer, so R 25.14(1) entitled the first and second respondents to indemnity costs. It was appropriate, fair and reasonable to set off those assessed costs against the damages award and continue the stay because the applicant was bankrupt and there was no likelihood of recovery absent set-off.

Court Disposition

No costs order was made for the period up to 11am on 17 June 2014; the applicant was ordered to pay the first and second respondents' costs on an indemnity basis from that time; the damages award was stayed pending costs assessment and set off against assessed costs.

Orders

  • ['There be no order as to costs as between the applicant and the first respondent and the second respondent in respect of the period up to 11am on 17 June 2014.' "The applicant pay the first respondent's and second respondent's costs of the proceedings on an indemnity basis from 11am on 17 June 2014." 'Conditional...