Comgroup Supplies Pty Ltd v Products for Industry Pty Ltd

Comgroup Supplies Pty Ltd (the applicant) appealed against a decision of the Supreme Court of Western Australia (the trial court) and sought to amend its notice of appeal. Products for Industry Pty Ltd (the respondents) made a Calderbank offer, which the applicant rejected, primarily because it believed it would be successful on appeal. The applicant's proposed amended notice of appeal was intended to address deficiencies in the initial notice of appeal but was unlikely to succeed and did not raise significant questions of law.

The court considered whether the applicant should be ordered to pay part of the respondents' costs on an indemnity basis, given the rejection of the Calderbank offer and the prospects of success on appeal. The court noted that appeals courts are generally reluctant to encourage Calderbank approaches in appeals. The applicant’s proposed amended notice of appeal was unlikely to succeed and did not raise significant questions of law. The court concluded that the applicant should bear part of the respondents' costs, given the circumstances of the case.

The court ordered that the applicant pay the respondents' costs on the standard basis from 25 February 2015 to 20 May 2015, and on an indemnity basis from 21 May 2015 onwards. This order reflected the court’s view that the applicant’s rejection of the Calderbank offer and the prospects of success on appeal were not strong enough to warrant a departure from the usual approach to costs in such circumstances.