Haros v Linfox Australia Pty Ltd (No 2) [2011] FCA 1223

Haros v Linfox Australia Pty Ltd (No 2) [2011] FCA 1223

The dismissal of the proceeding for failure to establish liability was a judgment on the claim to which the offers related, and it was more favourable to the respondents than the offers. O 23 r 11(6) was therefore engaged. Mr Haros did not displace the presumption in favour of indemnity costs: the first offer of $15,000 was not derisory, the asserted lack of information did not materially bear on rejection of the offer or the outcome, the fact that the case may have had some prospects did not suffice, and the Court's trial observations did not reasonably justify rejection of the later substantial offers. There was also no basis to exclude costs after 1 September 2010 because quantum...

Jurisdiction
Australia
Judgment Date
28 October 2011
Procedural Posture
Costs Application Concerning Indemnity Costs Following Dismissal of the Applicant's Proceeding / Application Determined on the Papers After Judgment Dismissing the Proceeding
Outcome
Application for indemnity costs granted in favour of the respondents.
Legal Topics
['indemnity Costs' 'offers of Compromise' 'federal Court Rules' 'rebuttable Presumption for Costs After Rejected Offer']
['costs' 'civil Procedure'] ['indemnity Costs' 'offers of Compromise' 'federal Court Rules' 'rebuttable Presumption for Costs After Rejected Offer']

Case Brief

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Procedural Posture

Costs Application Concerning Indemnity Costs Following Dismissal of the Applicant's Proceeding / Application Determined on the Papers After Judgment Dismissing the Proceeding

Legal Issues

  1. 1 ["Whether O 23 r 11(6) of the Federal Court Rules 1979 (Cth) applied where the respondents' offers of compromise were rejected and the proceeding was later dismissed after a liability-only hearing." 'Whether the applicant showed proper, compelling or exceptional circumstances sufficient to displace the presumption in favour of indemnity costs under O 23 r 11(6).' 'Whether any indemnity costs order should be limited so as not to apply to costs incurred after 1 September 2010.']

Ratio Decidendi

The dismissal of the proceeding for failure to establish liability was a judgment on the claim to which the offers related, and it was more favourable to the respondents than the offers. O 23 r 11(6) was therefore engaged. Mr Haros did not displace the presumption in favour of indemnity costs: the first offer of $15,000 was not derisory, the asserted lack of information did not materially bear on rejection of the offer or the outcome, the fact that the case may have had some prospects did not suffice, and the Court's trial observations did not reasonably justify rejection of the later substantial offers. There was also no basis to exclude costs after 1 September 2010 because quantum...

Court Disposition

Application for indemnity costs granted in favour of the respondents.

Orders

  • ["The applicant pay the respondents' costs of the proceeding incurred up to 11:00 am on 17 December 2009 on a party and party basis and thereafter on an indemnity basis." "The applicant pay the respondents' costs of the application for indemnity costs."]