Westpac Banking Corporation v ZH International Pty Ltd (No. 2) [2015] NSWSC 679

Westpac Banking Corporation v ZH International Pty Ltd (No. 2) [2015] NSWSC 679

An order for indemnity costs is appropriate from 6 May 2015 because the defendants' rejection of the Second Offer, a genuine and reasonable compromise, was itself unreasonable in the circumstances. The First Offer did not justify indemnity costs due to insufficient compromise and lack of evidence supporting improper motives for its rejection. Evidence of mediation offers was inadmissible per cl 21 Mediation Agreement and s 131 Evidence Act.

Jurisdiction
Australia
Judgment Date
02 June 2015
Procedural Posture
Costs Application / Post Judgment (costs)
Outcome
Plaintiff awarded costs on the ordinary basis up to and including 6 May 2015 and on an indemnity basis thereafter.
Legal Topics
['indemnity Costs' 'calderbank Offers' 'admissibility of Settlement Evidence']
['costs'] ['indemnity Costs' 'calderbank Offers' 'admissibility of Settlement Evidence']

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Procedural Posture

Costs Application / Post Judgment (costs)

Legal Issues

  1. 1 ["Whether an order for indemnity costs should be made based on the defendants' rejection of two offers of compromise" 'Whether affidavit evidence of settlement negotiations is admissible under s 131(2)(e) or (g) of the Evidence Act 1995 (NSW)']

Ratio Decidendi

An order for indemnity costs is appropriate from 6 May 2015 because the defendants' rejection of the Second Offer, a genuine and reasonable compromise, was itself unreasonable in the circumstances. The First Offer did not justify indemnity costs due to insufficient compromise and lack of evidence supporting improper motives for its rejection. Evidence of mediation offers was inadmissible per cl 21 Mediation Agreement and s 131 Evidence Act.

Court Disposition

Plaintiff awarded costs on the ordinary basis up to and including 6 May 2015 and on an indemnity basis thereafter.

Orders

  • ["Order the defendants to pay the plaintiff's costs of the proceedings on the ordinary basis up to and including 6 May 2015 and on an indemnity basis thereafter."]