Montgomery & Anor v MyFootDr (Aust) Pty Ltd (No. 2) [2021] NSWDC 506

Montgomery & Anor v MyFootDr (Aust) Pty Ltd (No. 2) [2021] NSWDC 506

Failure of plaintiffs to accept the various Calderbank offers was not unreasonable in the circumstances, particularly as offers were tripartite or did not conclusively resolve plaintiffs' entitlement, and the litigation did not result in a final and binding audit. Therefore, no indemnity costs order is warranted; ordinary costs principles apply, with adjustments for the costs of Notice of Motion and amendments.

Jurisdiction
Australia
Judgment Date
23 September 2021
Procedural Posture
Civil / Costs Determination After Primary Judgment
Outcome
Costs orders made as specified; no indemnity costs ordered against plaintiffs.
Legal Topics
['costs' 'calderbank Offers' 'indemnity Costs' 'notice of Motion' 'costs of Amendment']
['civil Procedure'] ['costs' 'calderbank Offers' 'indemnity Costs' 'notice of Motion' 'costs of Amendment']

Case Brief

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Procedural Posture

Civil / Costs Determination After Primary Judgment

Legal Issues

  1. 1 ['Whether failure to accept Calderbank offers by plaintiffs was unreasonable and warranted indemnity costs' 'Appropriate orders for costs relating to Notice of Motion and amendment of Defence']

Ratio Decidendi

Failure of plaintiffs to accept the various Calderbank offers was not unreasonable in the circumstances, particularly as offers were tripartite or did not conclusively resolve plaintiffs' entitlement, and the litigation did not result in a final and binding audit. Therefore, no indemnity costs order is warranted; ordinary costs principles apply, with adjustments for the costs of Notice of Motion and amendments.

Court Disposition

Costs orders made as specified; no indemnity costs ordered against plaintiffs.

Orders

  • ['Plaintiffs to pay defendant’s costs of the proceedings on the ordinary basis, subject to Orders 2 and 3.' 'Defendant to pay plaintiffs’ costs of the Notice of Motion filed on 2 August 2021.' 'Defendant to pay plaintiffs’ costs thrown away (if any) as a result of defendant obtaining leave to amend its Defence.']