Deputy Commissioner of Taxation v Leaver (No 2) [2015] FCA 1503

Deputy Commissioner of Taxation v Leaver (No 2) [2015] FCA 1503

Although the Commissioner had made Calderbank-style offers to forego costs and had succeeded in obtaining summary judgment and strike out, the basis on which the Commissioner succeeded was not the basis set out in the offers, there was no reliance on misconduct, and success on summary judgment alone did not establish that refusal of the offers was unreasonable or that the claims were manifestly hopeless. The Court was therefore not satisfied that indemnity costs should be awarded, but ordinary party and party costs should follow the event.

Jurisdiction
Australia
Judgment Date
23 December 2015
Procedural Posture
Costs Application / Determined on the Papers Following Summary Judgment and Strike Out of Claims Brought by Way of Defence or Cross Claim
Outcome
Application for indemnity costs refused; the Commissioner awarded costs on a party and party basis in each proceeding.
Legal Topics
['indemnity Costs' 'calderbank Offer' 'costs Discretion' 'summary Judgment' 'strike Out']
['costs' 'civil Procedure'] ['indemnity Costs' 'calderbank Offer' 'costs Discretion' 'summary Judgment' 'strike Out']

Case Brief

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Procedural Posture

Costs Application / Determined on the Papers Following Summary Judgment and Strike Out of Claims Brought by Way of Defence or Cross Claim

Legal Issues

  1. 1 ['Whether the Deputy Commissioner of Taxation should be awarded indemnity costs in NSD 576 of 2015 from 31 July 2015 based on the failure to accept the 30 July 2015 offer.' 'Whether the Deputy Commissioner of Taxation should be awarded indemnity costs in NSD 568 of 2015 from 20 November 2015 based on the failure to accept the 19 November 2015 offer.' 'Whether the refusal or failure to accept offers to withdraw claims, consent to judgment and have each party bear its own costs was unreasonable or otherwise justified indemnity costs.']

Ratio Decidendi

Although the Commissioner had made Calderbank-style offers to forego costs and had succeeded in obtaining summary judgment and strike out, the basis on which the Commissioner succeeded was not the basis set out in the offers, there was no reliance on misconduct, and success on summary judgment alone did not establish that refusal of the offers was unreasonable or that the claims were manifestly hopeless. The Court was therefore not satisfied that indemnity costs should be awarded, but ordinary party and party costs should follow the event.

Court Disposition

Application for indemnity costs refused; the Commissioner awarded costs on a party and party basis in each proceeding.

Orders

  • ['In each of the proceedings the Commissioner will be entitled to costs on a party and party basis to be taxed in default of agreement.']