Swire Pacific Ship Management (Australia) Pty Ltd v Bose (No 2) [2014] FCA 425

Swire Pacific Ship Management (Australia) Pty Ltd v Bose (No 2) [2014] FCA 425

The respondent's 27 August 2013 'walk away' Calderbank offer did not involve a real and genuine element of compromise because, at the time of the offer, the respondent had only attended a short directions hearing by telephone, no evidence was given of costs incurred, and the costs being given up were likely so small that there was no real give and take. Indemnity costs were therefore not justified, and the applicant was ordered to pay the respondent's costs on a party-and-party basis.

Jurisdiction
Australia
Judgment Date
30 April 2014
Procedural Posture
Appeal From the Administrative Appeals Tribunal on a Question of Law Under S 44 of the Administrative Appeals Tribunal Act 1975 (cth) / Costs Determination After Dismissal of the Appeal
Outcome
Indemnity costs were not awarded; the applicant was ordered to pay the respondent's costs of the appeal on a party-and-party basis.
Legal Topics
['calderbank Offer' 'indemnity Costs' 'party and Party Costs' 'real and Genuine Offer to Compromise' 'appeal on a Question of Law']
['costs' 'administrative Law' 'federal Court Procedure'] ['calderbank Offer' 'indemnity Costs' 'party and Party Costs' 'real and Genuine Offer to Compromise' 'appeal on a Question of Law']

Case Brief

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Procedural Posture

Appeal From the Administrative Appeals Tribunal on a Question of Law Under S 44 of the Administrative Appeals Tribunal Act 1975 (cth) / Costs Determination After Dismissal of the Appeal

Legal Issues

  1. 1 ["Whether the respondent's Calderbank offer involved a real and genuine element of compromise sufficient to justify indemnity costs after the applicant failed to accept the offer and lost the appeal." "Whether the applicant should pay the respondent's costs on an indemnity basis from 27 August 2013 and on a party-and-party basis before that date."]

Ratio Decidendi

The respondent's 27 August 2013 'walk away' Calderbank offer did not involve a real and genuine element of compromise because, at the time of the offer, the respondent had only attended a short directions hearing by telephone, no evidence was given of costs incurred, and the costs being given up were likely so small that there was no real give and take. Indemnity costs were therefore not justified, and the applicant was ordered to pay the respondent's costs on a party-and-party basis.

Court Disposition

Indemnity costs were not awarded; the applicant was ordered to pay the respondent's costs of the appeal on a party-and-party basis.

Orders

  • ["The applicant pay the respondent's costs of the appeal on a party-and-party basis."]