Ellis v Amari Metals Australia Pty Ltd t/as Atlas Steels Pty Ltd (No 2)

The plaintiff, Ellis, brought an action against Amari Metals Australia Pty Ltd t/as Atlas Steels Pty Ltd for damages arising from an accident at a construction site. The dispute centered on primary liability and contributory negligence. The matter was heard in the Supreme Court of New South Wales. In determining the appropriate costs order, the court considered the plaintiff's offer of compromise, which was open for seven days prior to the commencement of the hearing and was less than the amount obtained in the judgment. The court examined whether the offer was open for a reasonable time and whether the defendant had requested an extension to consider the offer. The court also considered whether it should exercise its discretion to award costs, given the primary issues of liability and contributory negligence.

The court concluded that the offer of compromise was indeed open for a reasonable period. Moreover, the defendant had not requested an extension to consider the offer. Given these circumstances and the fact that the main contention at the hearing was primary liability and contributory negligence, the court decided to exercise its discretion to award costs. The court found that the plaintiff was entitled to costs on an ordinary basis up to and including 28 May 2020, and on an indemnity basis thereafter.

The court’s reasoning focused on the nature of the dispute and the specific issues that were contested at the hearing. By awarding costs on an indemnity basis from a certain date, the court recognised the significant efforts the plaintiff had to undertake to secure their rights in the case. The court's decision reflects a careful consideration of the procedural steps taken and the substantive issues in the litigation.