Engadine Medical Imaging Services Pty Ltd as trustee for the Engadine Unit Trust v Mena Ibrahim (No 2)

The case involved Engadine Medical Imaging Services Pty Ltd, as trustee for the Engadine Unit Trust, acting as the plaintiff against Mena Ibrahim, the defendant. The dispute was centred around an application for indemnity costs made by the defendant against the plaintiff, focusing on whether the litigation had been conducted unreasonably or delinquently by the plaintiff. Additionally, the case examined whether it was unreasonable for the unsuccessful party not to accept a Calderbank offer.

The primary legal issues that the court had to resolve included determining the criteria for unreasonable conduct in litigation, particularly in the context of indemnity costs, and whether it was unreasonable for the plaintiff not to accept the Calderbank offer. The court also had to consider the procedural requirement of filing a notice of motion within 14 days of the costs orders being entered, and whether it was appropriate to dispense with this requirement given the circumstances.

The court found that the plaintiff's conduct during the litigation did not meet the threshold of being unreasonable or delinquent to warrant indemnity costs. It was determined that the plaintiff's decision not to accept the Calderbank offer was not unreasonable, given the circumstances and the potential for the plaintiff to succeed in the case. Regarding the procedural aspect, the court noted that while the applicants had not filed the notice of motion within the required 14-day period, they had notified both the court and the other parties of the motion in writing within the time frame. Given these circumstances, the court exercised its discretion to dispense with the procedural requirement, considering the applicants' prompt notification and the lack of prejudice to the defendant.

The court ordered that the application for indemnity costs was dismissed and that the defendant bear their own costs from the date of the application. Additionally, the court allowed the applicants' out-of-time motion to vary the costs orders, directing that the costs be assessed and paid in accordance with the orders made.