The Trust Company (Australia) Ltd in its capacity as custodian of The Asia Pacific Data Centre Trust v NEXTDC Limited [No 2] [2018] NSWSC 1384

The Trust Company (Australia) Ltd in its capacity as custodian of The Asia Pacific Data Centre Trust v NEXTDC Limited [No 2] [2018] NSWSC 1384

The two April settlement offers did not justify indemnity costs because the first required undefined additional settlement terms and the second effectively required capitulation at a very early stage and was not a sufficiently genuine compromise. The 5 July 2018 offer of compromise did warrant indemnity costs because the defendant obtained an order no less favourable than the offer, the offer provided a genuine and substantial compromise, and there was no warrant to depart from the normal consequences under UCPR r 42.15A.

Jurisdiction
Australia
Judgment Date
07 September 2018
Procedural Posture
Costs / Costs Determined on the Papers After Dismissal of the Principal Proceedings
Outcome
The plaintiffs are to pay the defendant's costs of the proceedings. Those costs are to be on the indemnity basis from 6 July 2018.
Legal Topics
['indemnity Costs' 'offers of Compromise' 'settlement Offers' 'ucpr R 20.26' 'ucpr R 42.15 A']
['civil Procedure' 'costs'] ['indemnity Costs' 'offers of Compromise' 'settlement Offers' 'ucpr R 20.26' 'ucpr R 42.15 A']

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Procedural Posture

Costs / Costs Determined on the Papers After Dismissal of the Principal Proceedings

Legal Issues

  1. 1 ["Whether the plaintiffs should pay the defendant's costs of the proceedings after the principal proceedings were dismissed." "Whether the plaintiffs' non-acceptance of the defendant's offers of settlement dated 21 April 2018 and 24 April 2018 justified indemnity costs." "Whether the defendant's offer of compromise under UCPR r 20.26 entitled it to indemnity costs from 6 July 2018 under UCPR r 42.15A." 'Whether the Court should otherwise order under UCPR r 42.15A.']

Ratio Decidendi

The two April settlement offers did not justify indemnity costs because the first required undefined additional settlement terms and the second effectively required capitulation at a very early stage and was not a sufficiently genuine compromise. The 5 July 2018 offer of compromise did warrant indemnity costs because the defendant obtained an order no less favourable than the offer, the offer provided a genuine and substantial compromise, and there was no warrant to depart from the normal consequences under UCPR r 42.15A.

Court Disposition

The plaintiffs are to pay the defendant's costs of the proceedings. Those costs are to be on the indemnity basis from 6 July 2018.

Orders

  • ["The plaintiffs are to pay the defendant's costs of the proceedings." 'Those costs are to be on the indemnity basis from 6 July 2018.']