In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1786

In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1786

The Defendants did not establish entitlement to indemnity costs. Both settlement offers were open for less than seven days and did not allow a reasonable time for acceptance in circumstances where there was no urgency and important evidence had not yet been filed. It was not unreasonable for Gestion to decline the offers at the times they were made, and the insolvency-related matters relied on by the Defendants did not take the case outside the usual course of a claim against a company in liquidation.

Jurisdiction
Australia
Judgment Date
12 December 2014
Procedural Posture
Costs Application in Corporations Proceedings / Post Judgment Application for Indemnity Costs After Dismissal of Plaintiff's Proceedings
Outcome
Application for indemnity costs dismissed; ordinary basis costs orders made.
Legal Topics
['calderbank Offers' 'indemnity Costs' 'ordinary Basis Costs' 'offers of Compromise' 'costs Following the Event' 'company in Liquidation']
['civil Procedure' 'costs' 'corporations'] ['calderbank Offers' 'indemnity Costs' 'ordinary Basis Costs' 'offers of Compromise' 'costs Following the Event' 'company in Liquidation']

Case Brief

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Procedural Posture

Costs Application in Corporations Proceedings / Post Judgment Application for Indemnity Costs After Dismissal of Plaintiff's Proceedings

Legal Issues

  1. 1 ['Whether the Defendants had shown reason to depart from the ordinary rule as to costs by ordering indemnity costs against the Plaintiff from 24 July 2014.' "Whether the Defendants' first offer of $10,000 was a genuine offer of compromise and whether Gestion acted unreasonably in not accepting it." "Whether the Defendants' second offer of $90,722.50 allowed a reasonable time for acceptance and made Gestion's rejection unreasonable." 'Whether the fact that Kit was insolvent and the proceedings were funded from limited assets justified indemnity costs.']

Ratio Decidendi

The Defendants did not establish entitlement to indemnity costs. Both settlement offers were open for less than seven days and did not allow a reasonable time for acceptance in circumstances where there was no urgency and important evidence had not yet been filed. It was not unreasonable for Gestion to decline the offers at the times they were made, and the insolvency-related matters relied on by the Defendants did not take the case outside the usual course of a claim against a company in liquidation.

Court Disposition

Application for indemnity costs dismissed; ordinary basis costs orders made.

Orders

  • ["The Plaintiff pay the Defendants' costs of the proceedings (excluding the costs of this application) on an ordinary basis, as agreed or as assessed." 'The Defendants pay the costs of this application for indemnity costs on an ordinary basis, as agreed or as assessed.']