Davies v Whitehaven Coal Mining Ltd (No 2) [2019] NSWSC 1292

Davies v Whitehaven Coal Mining Ltd (No 2) [2019] NSWSC 1292

An indemnity costs order was not appropriate because the 14 May 2019 Calderbank letter did not put the plaintiff on notice that refusal could lead to an application for indemnity costs, the plaintiff's prospects of success at the time were not poor despite the substantial compromise offered, and there was no relevant delinquency by the plaintiff. The plaintiff was therefore to pay the defendant's costs only on the ordinary basis, as agreed or assessed.

Jurisdiction
Australia
Judgment Date
26 September 2019
Procedural Posture
Costs / Costs Determination After Verdict and Judgment for the Defendant
Outcome
The defendant's application for indemnity costs was refused; the plaintiff was ordered to pay the defendant's costs on the ordinary basis, as agreed or assessed.
Legal Topics
['calderbank Letter' 'indemnity Costs' 'ordinary Basis Costs' 'offer of Compromise']
['costs' 'civil Procedure'] ['calderbank Letter' 'indemnity Costs' 'ordinary Basis Costs' 'offer of Compromise']

Case Brief

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Procedural Posture

Costs / Costs Determination After Verdict and Judgment for the Defendant

Legal Issues

  1. 1 ["Whether the plaintiff should pay the defendant's costs on an indemnity basis from 14 May 2019 because the plaintiff refused the defendant's Calderbank offer." 'Whether it was unreasonable for the plaintiff to refuse the offer where the letter did not warn that indemnity costs would be sought.']

Ratio Decidendi

An indemnity costs order was not appropriate because the 14 May 2019 Calderbank letter did not put the plaintiff on notice that refusal could lead to an application for indemnity costs, the plaintiff's prospects of success at the time were not poor despite the substantial compromise offered, and there was no relevant delinquency by the plaintiff. The plaintiff was therefore to pay the defendant's costs only on the ordinary basis, as agreed or assessed.

Court Disposition

The defendant's application for indemnity costs was refused; the plaintiff was ordered to pay the defendant's costs on the ordinary basis, as agreed or assessed.

Orders

  • ["The plaintiff is to pay the defendant's costs, as agreed or assessed."]