Specsavers Pty Ltd v The Optical Superstore Pty Ltd (No 4) [2012] FCA 652

Specsavers Pty Ltd v The Optical Superstore Pty Ltd (No 4) [2012] FCA 652

The respondents were the successful parties and are entitled to their costs of the claim for damages under the undertaking, but costs are reduced by 35% (to 65%) due to the small size of the award compared to the resources expended and the respondents' failure to act in accordance with the overarching purpose by not engaging seriously with multiple offers of compromise. The applicant's claim for indemnity costs fails because the judgment was not less favourable than the terms of the relevant offer of compromise.

Parties
Applicant: Specsavers Pty Ltd (ACN 097 147 932); First Respondent: The Optical Superstore Pty Ltd (ACN 095 737 894); Second Respondent: Optom Admin Pty Ltd (ACN 101 150 449); Third Respondent: William Chin; Fourth Respondent: Northern Coast Optical Pty Ltd (ACN 006 873 758); Fifth Respondent: Townsville Optical Pty Ltd (ACN 097 398 019); Sixth Respondent: Bundaberg Optical Pty Ltd (ACN 131 317 676); Seventh Respondent: Unique Eyewear Pty Ltd (ACN 006 251 305); Eighth Respondent: Ipswich Optical Pty Ltd (ACN 082 352 350)
Jurisdiction
Australia
Judgment Date
21 June 2012
Procedural Posture
Application for Costs Following Judgment on Claim for Damages Under Undertaking / Post Judgment, Determination of Costs
Outcome
Costs awarded to respondents at 65% of their costs and disbursements for the damages claim under the undertaking.
Legal Topics
Costs, Undertakings as to Damages, Offers of Compromise, Discretionary Costs Powers
Civil Procedure Costs Undertakings as to Damages Offers of Compromise Discretionary Costs Powers

Case Brief

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Parties

Specsavers Pty Ltd (ACN 097 147 932)

Applicant

The Optical Superstore Pty Ltd (ACN 095 737 894)

First Respondent

Optom Admin Pty Ltd (ACN 101 150 449)

Second Respondent

William Chin

Third Respondent

Northern Coast Optical Pty Ltd (ACN 006 873 758)

Fourth Respondent

Townsville Optical Pty Ltd (ACN 097 398 019)

Fifth Respondent

Bundaberg Optical Pty Ltd (ACN 131 317 676)

Sixth Respondent

Unique Eyewear Pty Ltd (ACN 006 251 305)

Seventh Respondent

Ipswich Optical Pty Ltd (ACN 082 352 350)

Eighth Respondent

Procedural Posture

Application for Costs Following Judgment on Claim for Damages Under Undertaking / Post Judgment, Determination of Costs

Legal Issues

  1. 1 Whether respondents were successful in their claim for damages under the undertaking
  2. 2 Whether respondents acted unreasonably in not responding to offers of compromise
  3. 3 Whether costs should be reduced in light of the size of the award and parties' conduct

Ratio Decidendi

The respondents were the successful parties and are entitled to their costs of the claim for damages under the undertaking, but costs are reduced by 35% (to 65%) due to the small size of the award compared to the resources expended and the respondents' failure to act in accordance with the overarching purpose by not engaging seriously with multiple offers of compromise. The applicant's claim for indemnity costs fails because the judgment was not less favourable than the terms of the relevant offer of compromise.

Court Disposition

Costs awarded to respondents at 65% of their costs and disbursements for the damages claim under the undertaking.

Orders

  • The applicant pay 65% of the respondents' costs (including disbursements) of their claim for damages under the undertaking.