ANZ Banking Group v Londish (No 2)

ANZ Banking Group filed an application against Mrs Londish, Perpetual and another party (referred to as the second and third defendants), seeking damages for alleged breaches of contract and unjust enrichment. The case was heard in the Supreme Court of New South Wales. The central issue for the court was to determine whether the ANZ, as the plaintiff, should bear the costs of the proceedings against the second and third defendants, now identified as Perpetual. This arose from the ANZ's unsuccessful claim against Perpetual, which was made in restitution. The court needed to consider whether the joinder of Perpetual was reasonable, and if the ANZ's claim against Perpetual was at least arguable, despite the ANZ's ultimate success against Mrs Londish.

The court examined the legal precedents and submissions from both parties, particularly focusing on the concept of reasonableness in joining additional defendants and the implications of the Calderbank offer made by Perpetual. The ANZ argued that it had extended an offer to Mrs Londish to settle the proceedings, which was a factor in determining the costs. Perpetual, on the other hand, argued that the ANZ's failure to accept its Calderbank offer and its unsuccessful claim against it should result in the ANZ bearing the costs. The court considered the risk ANZ took by not obtaining relief against Perpetual and the hypothetical nature of Perpetual's claim given the outcome against Mrs Londish.

The court ruled that the ANZ should bear the costs of the proceedings against Perpetual. The reasoning was that the ANZ's claim against Perpetual was at least arguable, and it was reasonable for the ANZ to join Perpetual as a defendant. The court noted that while the ANZ was successful against Mrs Londish, the question of whether the alternate claim against Perpetual would have been successful became hypothetical. The court found that the risk taken by ANZ in pursuing the claim against Perpetual warranted that the ANZ should bear its own costs. The court also considered the insolvency of Mrs Londish, which added complexity to the recovery of costs from her.

In conclusion, the court ordered that ANZ bear the costs of the proceedings against Perpetual, reflecting the reasonable joinder of Perpetual and the arguable nature of ANZ's claim against it.