Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368

Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368

The offer made by the appellant was not a genuine offer of compromise, being derisory and more of an invitation to surrender than a commercial settlement. Thus, the Court exercised its discretion to 'otherwise order' and denied indemnity costs, awarding instead ordinary costs. Similar reasoning applied on appeal, given no fresh offer and the reasonable conduct of the respondent.

Jurisdiction
Australia
Judgment Date
12 November 2009
Procedural Posture
Appeal / Post Judgment (costs and Restitution Orders)
Outcome
Orders made denying indemnity costs and awarding restitution; ordinary costs awarded.
Legal Topics
['costs' 'offer of Compromise' 'contractual Interpretation' 'restitution']
['civil Procedure' 'contract Law'] ['costs' 'offer of Compromise' 'contractual Interpretation' 'restitution']

Case Brief

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Procedural Posture

Appeal / Post Judgment (costs and Restitution Orders)

Legal Issues

  1. 1 ['Whether the appellant is entitled to indemnity costs following an offer of compromise under Uniform Civil Procedure Rules 2005 (NSW) r 20.26 and r 42.15A' 'Whether the offer of compromise constituted a genuine offer' "Appropriate exercise of the court's discretion to 'otherwise order' on costs"]

Ratio Decidendi

The offer made by the appellant was not a genuine offer of compromise, being derisory and more of an invitation to surrender than a commercial settlement. Thus, the Court exercised its discretion to 'otherwise order' and denied indemnity costs, awarding instead ordinary costs. Similar reasoning applied on appeal, given no fresh offer and the reasonable conduct of the respondent.

Court Disposition

Orders made denying indemnity costs and awarding restitution; ordinary costs awarded.

Orders

  • ['The respondent pay the appellant $807,328.97 plus interest at Schedule 5 rates from 28 July 2008 by way of restitution.' "The appellant's notice of motion of 17 July 2009 is otherwise dismissed." "The appellant pay the respondent's costs of the notice of motion."]