Doble Express Transport Pty Ltd (Administrator Appointed) v John L Pierce Pty Ltd (No 2)

The appeal concerned an application by John L Pierce Pty Ltd (Pierce) for indemnity costs arising from an offer of compromise made by Doble Express Transport Pty Ltd (Doble). The dispute centred on whether Pierce was entitled to indemnity costs when it had filed a notice of contention after Doble’s offer of compromise had been made. The matter was heard in the Court of Appeal of New South Wales.

The primary legal issue before the Court of Appeal was whether Pierce’s notice of contention, filed after Doble’s offer of compromise, rendered the offer unreasonable in the circumstances, thereby disentitling Doble to recover its costs on an indemnity basis. The court was required to consider the interplay between an offer of compromise and a subsequent notice of contention, and how this affected the assessment of whether an offer was made within a reasonable time.

The Court of Appeal held that the notice of contention, filed after the offer of compromise, did not render the offer unreasonable. The court reasoned that the offer of compromise was made at a time when the issues were sufficiently defined, and the filing of the notice of contention did not fundamentally alter the nature of the dispute or the information available to Doble when making its offer. Therefore, the offer was considered to have been made within a reasonable time.

The Court of Appeal dismissed Pierce’s Notice of Motion filed on 22 December 2016 and ordered that Pierce pay the costs of Doble of that Motion.