Refina Pty Ltd v Binnie (Costs) [2009] NSWSC 1098

Refina Pty Ltd v Binnie (Costs) [2009] NSWSC 1098

Indemnity costs were refused because the plaintiff's proceedings were not obviously or manifestly hopeless from the outset, and the rejection of the Calderbank offer was not shown to be unreasonable in a way that justified the exceptional order sought, particularly having regard to the small quantum of the dispute and the minimal compromise element in the offer when made.

Jurisdiction
Australia
Judgment Date
18 September 2009
Procedural Posture
Costs Application in Equity Division Proceedings / Consequential Orders After Proceedings Dismissed With Costs
Outcome
Application for indemnity costs declined.
Legal Topics
['indemnity Costs' 'calderbank Offer' 'costs Discretion' 'proceedings Alleged to Be Doomed or Hopeless']
['civil Procedure' 'costs'] ['indemnity Costs' 'calderbank Offer' 'costs Discretion' 'proceedings Alleged to Be Doomed or Hopeless']

Case Brief

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Procedural Posture

Costs Application in Equity Division Proceedings / Consequential Orders After Proceedings Dismissed With Costs

Legal Issues

  1. 1 ['Whether the proceedings were obviously or manifestly hopeless from the outset so as to warrant an indemnity costs order.' 'Whether Refina unreasonably rejected a without prejudice save as to costs offer made on 1 April 2008 so as to warrant an indemnity costs order.' 'Whether there should be any order as to the costs of the indemnity costs application.']

Ratio Decidendi

Indemnity costs were refused because the plaintiff's proceedings were not obviously or manifestly hopeless from the outset, and the rejection of the Calderbank offer was not shown to be unreasonable in a way that justified the exceptional order sought, particularly having regard to the small quantum of the dispute and the minimal compromise element in the offer when made.

Court Disposition

Application for indemnity costs declined.

Orders

  • ['No indemnity costs order made.' 'In respect of the application for indemnity costs, including the costs of today, there will be no order as to costs, to the intent that each party bear their own costs.' 'The exhibits may be returned to the parties upon the undertaking of the respective parties that they will be...