Cockburn v The Trust Company Ltd (No 3)

The case of Cockburn v The Trust Company Ltd (No 3) was heard by the Supreme Court of Western Australia, where the plaintiff, Cockburn, sought a declaration regarding the occupation of premises by the defendants, The Trust Company Ltd and another party. The dispute centred around a Calderbank letter, which is an offer of compromise made by a party in litigation, and the subsequent costs implications of the offer and the outcome of the proceedings.

The court was required to determine whether the second defendant, who had information about the occupation of the premises, was required to pay the plaintiff's costs due to their conduct in the proceedings. The primary legal issue was whether the second defendant's conduct warranted an order for indemnity costs against them, particularly in light of their knowledge of the occupation of the premises and their failure to disclose this information.

The court found that the second defendant's conduct was such that it warranted an order for indemnity costs against them. Their failure to disclose the information about the occupation of the premises was a significant factor in the court's decision. The court also considered the conduct of the first defendant and the Calderbank letter in determining the costs orders. Ultimately, the court ordered the plaintiff to pay the first defendant's costs on the ordinary basis up to a certain date and on an indemnity basis thereafter. The second defendant was ordered to pay the plaintiff's costs, including those which the plaintiff was obliged to pay as a result of the orders concerning the first defendant.

In conclusion, the court's orders reflected a strong stance on the importance of full disclosure and the consequences of failing to do so in litigation. The second defendant's knowledge of the occupation of the premises and their failure to disclose this information led to a significant costs penalty, while the first defendant's conduct and the Calderbank letter also played a role in the final costs orders.