Concrete Menders Pty Ltd v Ghiasvand & Ghiasvand; Ghiasvand & Ghiasvand v Flexible Constructions Pty Ltd (No 3)

Concrete Menders Pty Ltd, along with Ghiasvand & Ghiasvand, initiated proceedings against Flexible Constructions Pty Ltd in the Supreme Court of New South Wales. The plaintiffs sought damages for breaches of contract and associated claims. Concrete Menders and Ghiasvand & Ghiasvand also brought third-party proceedings against each other, each seeking indemnity against the other. The defendants, in turn, sought indemnity from one another and filed cross-claims against the plaintiffs. The central legal issues revolved around the entitlement of the plaintiffs and third parties to indemnity costs from the defendants and whether the defendants' rejection of a compromise offer was unreasonable.

The court examined the nature of the defendants' defence, which, while not outright false, was described as nuanced. The court also took into account the defendants' conduct on an earlier occasion, noting that aspects of their conduct had already been considered. The court assessed the reasonableness of the defendants' rejection of a compromise offer, concluding that the case presented by the plaintiffs and third parties at trial differed from the basis of their initial claim. Given these considerations, the court found that the plaintiffs and third parties were not entitled to an indemnity costs order against the defendants. The court's reasoning emphasised the need for a nuanced understanding of the defendants' defence and the divergence between the initial claim and the case presented at trial.

As a result of the court's determination, the application for indemnity costs by the plaintiffs and third parties was refused. The court's orders reflected its assessment of the reasonableness of the defendants' conduct and the divergence between the initial claims and the case presented at trial. The specific orders made by the court are detailed in paragraph [43] of the judgment.