Campbell v T. L. Clacher No. 2 Pty Ltd

In the case of Campbell v T. L. Clacher No. 2 Pty Ltd, the applicants sought an order that the respondents pay their costs of the proceeding on an indemnity basis and that the respondents have no entitlement to have their costs paid out of the fund of the Clacher Family Trust. The respondents opposed these orders, arguing that the offer of settlement, submitting appearance and costs thrown away by the applicants' amendment to the statement of claim should be taken into account. The court was required to determine whether the facts of the proceeding warranted another or special order to be made against the respondents under Uniform Civil Procedure Rules 1999 (Qld) r 681(1), and whether the considerations in Colgate-Palmolive Company and Anor v Cussons Pty Ltd (1993) 46 FCR 225 were relevant in deciding whether an indemnity costs order should be made. Additionally, the court needed to determine whether the first respondent was entitled to be paid costs of the proceeding from the fund of the Clacher Family Trust.

The court found that the applicants' claims for indemnity costs were unsuccessful, but the circumstances warranted an order that the first and third respondents pay the applicants' costs of the proceeding except for the costs thrown away by the amendments made by the further amended statement of claim to be assessed on the standard basis, and that the second respondent pay the applicants' costs of the proceeding except for the costs thrown away by the amendments made by the further amended statement of claim to be assessed on the indemnity basis. The court also found that the applicants were required to pay the respondents costs thrown away by the amendments made by the further amended statement of claim. Finally, the court found that the first respondent was not entitled to have its costs of the proceeding paid out of the funds held by the trustee of the Clacher Family Trust.

The court ordered that the first and third respondents pay the applicants' costs of the proceeding except for the costs thrown away by the amendments made by the further amended statement of claim to be assessed on the standard basis, and that the second respondent pay the applicants' costs of the proceeding except for the costs thrown away by the amendments made by the further amended statement of claim to be assessed on the indemnity basis. The applicants were required to pay the respondents costs thrown away by the amendments made by the further amended statement of claim. Additionally, the court found that the first respondent was not entitled to have its costs of the proceeding paid out of the funds held by the trustee of the Clacher Family Trust.