93 GSP Pty Ltd v Advent 8 Pty Limited (No 2)

93 GSP Pty Ltd commenced proceedings against Advent 8 Pty Limited seeking damages for breaches of contract and misleading and deceptive conduct. The case involved complex issues of contract interpretation and statutory claims under the Australian Consumer Law. The court had to determine whether the defendant's conduct amounted to misleading and deceptive conduct, and if so, whether the plaintiff was entitled to damages and costs. The central legal issue was the interpretation of an offer of compromise and its implications for indemnity costs. The plaintiff argued that an offer of compromise made against one defendant was not "no less favourable" than the judgment against two defendants, thereby warranting indemnity costs. The defendant contested this, arguing that the offer of compromise did not provide a basis for such costs.

The court examined the nature of the offer of compromise and its acceptance. It held that for an offer of compromise to entitle a party to indemnity costs, the defendant must be in a position to accept the offer. In this case, the court found that the defendant was not in a position to accept the offer of compromise as it related to only one defendant, and thus the plaintiff was not entitled to indemnity costs. The court confirmed its earlier order made on 14 May 2013 and declined to order that any of those costs be assessed on an indemnity basis. This decision underscores the importance of the ability to accept an offer of compromise for indemnity costs to be awarded.