E M Baldwin & Sons Ltd v Plane & Anor; Jsekarb Pty Ltd v Plane & Anor (Costs judgment)

In *E M Baldwin & Sons Ltd v Plane & Anor; Jsekarb Pty Ltd v Plane & Anor (Costs judgment)*, the New South Wales Court of Appeal considered an application for costs following earlier proceedings. The applicants, E M Baldwin & Sons Ltd and Jsekarb Pty Ltd, sought to appeal a decision, while the respondent was the estate of Mr Plane. The core of the dispute, as it pertained to this costs judgment, revolved around the appropriate basis for ordering costs, specifically whether they should be assessed on a standard or indemnity basis.

The primary legal issue before the Court of Appeal was whether it was just and equitable to order that the costs incurred by Mr Plane’s estate after 30 June 1998 be assessed on an indemnity basis. This question necessitated an examination of the reasonableness of the parties' conduct, particularly their attitudes towards offers of compromise made during the litigation. The court had to determine if the conduct of Baldwin and Jsekarb warranted a departure from the usual order for costs to be assessed on a standard basis.

The Court of Appeal reasoned that the applicants’ conduct, in persisting with their appeal despite the strength of the evidence against them and the unreasonableness of their offers of compromise, justified an order for indemnity costs. The court applied the principle that indemnity costs may be awarded where a party’s conduct is unreasonable, vexatious, or amounts to an abuse of process, or where a party has unreasonably refused a reasonable offer of settlement. In this instance, the court found that the applicants’ stance was unreasonable and that the respondent’s estate had been put to unnecessary expense as a result.

Consequently, the Court of Appeal dismissed Baldwin’s motion filed on 1 February 1999 with costs. It further ordered that Baldwin and Jsekarb pay the costs of the motions filed by Mr Plane’s estate on 2 February 1999. Crucially, the court ordered that the costs payable by Baldwin and Jsekarb to Mr Plane’s estate incurred after 30 June 1998 be assessed on an indemnity basis.