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indemnity_costs [2013/01/06 16:44]
steve [NSW]
indemnity_costs [2017/07/30 18:00] (current)
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 The can include up to 100% of the costs incurred. The can include up to 100% of the costs incurred.
  
-====== When are they awarded? ​====== +===== When are they awarded? ===== 
-  * Historically,​ the Court had the power to award costs on a solicitor and client (indemnity) basis as and when the justice of the case might so require ((Andrews v Barnes (1887) 39 Ch. D. 133 (CA) at 141; [[http://​www.austlii.edu.au/​au/​cases/​cth/​FCA/​1993/​536.html|Colgate-Palmolive Company v Cussons Pty Ltd]] [1993] FCA 536))   +  * Historically,​ the Court had the power to award costs on a solicitor and client (indemnity) basis as and when the justice of the case might so require ((Andrews v Barnes (1887) 39 Ch. D. 133 (CA) at 141; [[Colgate-Palmolive v Cussons|Colgate-Palmolive Company v Cussons Pty Ltd]] [1993] FCA 536))   
-  * French J (as his Honour then was), said (([[http://​www.austlii.edu.au/​au/​cases/​cth/​FCA/​1993/​42.html|J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers - Western Australian Branch and Building Trades Association of Unions of Western Australia (Association of Workers)]] [1993] FCA 42)) that for the court to depart from the usual party and party basis :+  * French J (as his Honour then was), said (([[J-Corp v Australian Builders Labourers Federated Union of Workers|J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers - Western Australian Branch and Building Trades Association of Unions of Western Australia (Association of Workers)]] [1993] FCA 42)) that for the court to depart from the usual party and party basis :
     * ... it is not a necessary condition of the power to award such costs that a collateral purpose or some species of fraud be established. ​     * ... it is not a necessary condition of the power to award such costs that a collateral purpose or some species of fraud be established. ​
     * It is sufficient, in my opinion, to enliven the discretion to award such costs that, for whatever reason, a party persists in what should on proper consideration be seen to be a hopeless case.     * It is sufficient, in my opinion, to enliven the discretion to award such costs that, for whatever reason, a party persists in what should on proper consideration be seen to be a hopeless case.
-  * These comments were made by French J in relation to the decision of Woodward J (([[http://​www.austlii.edu.au/​au/​cases/​cth/​FCA/​1988/​202.html|Fountain Selected Meats (Sales) Pty Limited v International Produce Merchants Pty Limited]] (1988) 81 ALR 397 at 400-401)) , where he said: +  * These comments were made by French J in relation to the decision of Woodward J (([[Fountain Selected Meats Sales v International Produce Merchants|Fountain Selected Meats (Sales) Pty Limited v International Produce Merchants Pty Limited]] (1988) 81 ALR 397 at 400-401)) , where he said: 
-    * Courts in both the United Kingdom and Australia have long accepted that solicitor and client costs can properly be awarded in appropriate cases where there is some special or unusual feature in the case to justify the court exercising its discretion in that way ((Preston v Preston (1982) 1 All ER 41 at 58)).+    * Courts in both the United Kingdom and Australia have long accepted that solicitor and client costs can properly be awarded in appropriate cases where there is some special or unusual feature in the case to justify the court exercising its discretion in that way (([[Preston v Preston]] (1982) 1 All ER 41 at 58)).
     * I believe that it is appropriate to consider awarding '​solicitor and client'​ or '​indemnity'​ costs, whenever it appears that an action has been commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success.  ​     * I believe that it is appropriate to consider awarding '​solicitor and client'​ or '​indemnity'​ costs, whenever it appears that an action has been commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success.  ​
     * In such cases the action must be presumed to have been commenced or continued for some ulterior motive, or because of some wilful disregard of the known facts or the clearly established law.     * In such cases the action must be presumed to have been commenced or continued for some ulterior motive, or because of some wilful disregard of the known facts or the clearly established law.
  
-====== NSW ====== +===== NSW ===== 
-  * [[http://​www.austlii.edu.au/​au/​cases/​nsw/​NSWSC/​2011/​685.html|The State of NSW v UXC Limited (No 2)]](([2011] NSWSC 685)), Ball J+  * [[The State of NSW v UXC|The State of NSW v UXC Limited (No 2)]](([2011] NSWSC 685)), Ball J
     * Expert Determination upheld     * Expert Determination upheld
     * The defendant pay the plaintiff'​s costs of the proceedings (including the costs of the cross-summons) on the ordinary basis.     * The defendant pay the plaintiff'​s costs of the proceedings (including the costs of the cross-summons) on the ordinary basis.
     * There is no dispute that the court can take into account the offer of compromise in determining an appropriate order in relation to costs in accordance with the principles that have their genesis in the decision of [[Calderbank]] v Calderbank (([1975] 3 All ER 333; 3 WLR 586.))     * There is no dispute that the court can take into account the offer of compromise in determining an appropriate order in relation to costs in accordance with the principles that have their genesis in the decision of [[Calderbank]] v Calderbank (([1975] 3 All ER 333; 3 WLR 586.))
-    * According to those principles, the court may, in the exercise of its discretion, make a costs order in favour of a party who has made an offer of compromise that is more favourable than the order the party would normally obtain if that party can establish that the offer represented a genuine compromise of the dispute and that it was unreasonable for the offeree to have rejected it ((see [[http://​www.austlii.edu.au/​au/​cases/​nsw/​NSWCA/​2008/​117.html|Commonwealth of Australia v Gretton]] [2008] NSWCA 117 at [38] per Beazley JA; [[http://​www.austlii.edu.au/​au/​cases/​nsw/​NSWCA/​2003/​258.html|Jones v Bradley (No 2)]] [2003] NSWCA 258 at [8] per Meagher, Beazley and Santow JJA.)) ​+    * According to those principles, the court may, in the exercise of its discretion, make a costs order in favour of a party who has made an offer of compromise that is more favourable than the order the party would normally obtain if that party can establish that the offer represented a genuine compromise of the dispute and that it was unreasonable for the offeree to have rejected it ((see [[Commonwealth of Australia v Gretton|Commonwealth of Australia v Gretton]] [2008] NSWCA 117 at [38] per Beazley JA; [[Jones v Bradley|Jones v Bradley (No 2)]] [2003] NSWCA 258 at [8] per Meagher, Beazley and Santow JJA.)) ​
     * In my opinion, BDM's offer did not represent a genuine offer of compromise. ​     * In my opinion, BDM's offer did not represent a genuine offer of compromise. ​
     * The only element of compromise it involved was foregoing a small amount of interest and its own legal costs. ​     * The only element of compromise it involved was foregoing a small amount of interest and its own legal costs. ​
-    * In some cases, having regard to the strength of the plaintiff'​s case, an offer to forego interest and legal costs may be a genuine offer of compromise. ((see [[http://​www.austlii.edu.au/​au/​cases/​nsw/​NSWCA/​2004/​227.html|Manly Council v Byrne (No 2)]] [2004] NSWCA 227.))+    * In some cases, having regard to the strength of the plaintiff'​s case, an offer to forego interest and legal costs may be a genuine offer of compromise. ((see [[Manly Council v Byrne|Manly Council v Byrne (No 2)]] [2004] NSWCA 227.))
     * However, I do not think it represents a genuine offer of compromise in this case.      * However, I do not think it represents a genuine offer of compromise in this case. 
     * In my opinion, it was open to UXC to argue that something had gone wrong with the drafting of the disputed clause and that, in those circumstances,​ the court should seek to find elsewhere in the contract the amount to which the disputed clause referred. ​     * In my opinion, it was open to UXC to argue that something had gone wrong with the drafting of the disputed clause and that, in those circumstances,​ the court should seek to find elsewhere in the contract the amount to which the disputed clause referred. ​
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     * Although I rejected UXC's submissions,​ I do not think that BDM's case was so strong that the offer it made represented a genuine compromise of it.      * Although I rejected UXC's submissions,​ I do not think that BDM's case was so strong that the offer it made represented a genuine compromise of it. 
     * In addition, I think it was reasonable of UXC to reject that offer in circumstances where it believed that the case being advanced by BDM was one which ultimately was not accepted by the court. ​     * In addition, I think it was reasonable of UXC to reject that offer in circumstances where it believed that the case being advanced by BDM was one which ultimately was not accepted by the court. ​
-  * [[http://​www.austlii.edu.au/​cgi-bin/​sinodisp/​au/​cases/​nsw/​NSWCA/​2008/​172.html|The Uniting Church v Takacs (No 2)]](( [2008] NSWCA 172)) +  * [[The Uniting Church v Takacs|The Uniting Church v Takacs (No 2)]](( [2008] NSWCA 172)) 
-====== Vic ====== +===== VIC ===== 
-  * [[http://​www.austlii.edu.au/​cgi-bin/​sinodisp/​au/​cases/​vic/​VSCA/​2005/​298.html|Hazeldene'​s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2)]] (([2005] VSCA 298)), Warren CJ, Maxwell P, Harper AJA+  * [[Hazeldene'​s Chicken Farm v Victorian WorkCover Authority|Hazeldene'​s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2)]] (([2005] VSCA 298)), Warren CJ, Maxwell P, Harper AJA
     * Where costs are ordered to be taxed on an indemnity basis, on the other hand, a party is able recover all its costs other than those shown to have been unreasonably incurred or of an unreasonable amount. ​     * Where costs are ordered to be taxed on an indemnity basis, on the other hand, a party is able recover all its costs other than those shown to have been unreasonably incurred or of an unreasonable amount. ​
     * It is the unsuccessful party which bears the onus of satisfying the court that the costs claimed are unreasonable.     * It is the unsuccessful party which bears the onus of satisfying the court that the costs claimed are unreasonable.
-  * [[http://​www.austlii.edu.au/​au/​cases/​vic/​VSC/​2001/​189.html|Ugly Tribe Co Pty Ltd v Sikola]] (([2001] VSC 189))+  * [[Ugly Tribe v Sikola|Ugly Tribe Co Pty Ltd v Sikola]] (([2001] VSC 189))
  
-====== See also ======+===== See also =====
   * [[Party|Party/​Party Costs]]   * [[Party|Party/​Party Costs]]
   * [[Solicitorclient|Solicitor/​Client Costs]]   * [[Solicitorclient|Solicitor/​Client Costs]]

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