Flogineering Pty Ltd v Blu Logistics SA Pty Ltd (No 5) [2021] FCA 1546

Flogineering Pty Ltd v Blu Logistics SA Pty Ltd (No 5) [2021] FCA 1546

The respondents could not properly evaluate the 2 September 2017 offer within 14 days because the offer sought undertakings concerning more trucks than were ultimately part of the findings and because the applicant's loss and damage methodology had not then been sufficiently formulated. However, by the time the respondents were preparing for the 17 to 19 March 2020 loss and damage trial, they were familiar with the applicant's methodology and able to form a view about loss and damage. Exercising the costs discretion under s 43, costs were awarded to the applicant on a party and party basis up to and including 2 March 2020 and on an indemnity basis from 3 March 2020 to the date of orders.

Jurisdiction
Australia
Judgment Date
08 December 2021
Procedural Posture
Commercial and Corporations Proceeding; Regulator and Consumer Protection Sub Area / Disposition of Reserved Costs After Liability and Quantum Judgments in the Principal Proceeding
Outcome
Respondents ordered to pay the applicant's costs, partly on a party and party basis and partly on an indemnity basis.
Legal Topics
['offer of Compromise' 'indemnity Costs' 'party and Party Costs' 'federal Court Costs Discretion']
['practice and Procedure' 'costs'] ['offer of Compromise' 'indemnity Costs' 'party and Party Costs' 'federal Court Costs Discretion']

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Procedural Posture

Commercial and Corporations Proceeding; Regulator and Consumer Protection Sub Area / Disposition of Reserved Costs After Liability and Quantum Judgments in the Principal Proceeding

Legal Issues

  1. 1 ['Whether the applicant obtained a judgment more favourable than its 2 September 2017 offer of compromise for the purposes of r 25.14(3) of the Federal Court Rules 2011 (Cth).' "Whether respondents should pay the applicant's costs on a party and party basis or an indemnity basis, and from what date."]

Ratio Decidendi

The respondents could not properly evaluate the 2 September 2017 offer within 14 days because the offer sought undertakings concerning more trucks than were ultimately part of the findings and because the applicant's loss and damage methodology had not then been sufficiently formulated. However, by the time the respondents were preparing for the 17 to 19 March 2020 loss and damage trial, they were familiar with the applicant's methodology and able to form a view about loss and damage. Exercising the costs discretion under s 43, costs were awarded to the applicant on a party and party basis up to and including 2 March 2020 and on an indemnity basis from 3 March 2020 to the date of orders.

Court Disposition

Respondents ordered to pay the applicant's costs, partly on a party and party basis and partly on an indemnity basis.

Orders

  • ['The respondents pay the costs of the applicant of and incidental to the proceeding up to and including 2 March 2020 on a party and party basis.' 'The respondents pay the costs of the applicant of and incidental to the proceeding from and including 3 March 2020 to the date of these orders on an indemnity basis.'...