Evans Shire Council v Richardson (No 2)

The parties to this proceeding were Evans Shire Council and Richardson. The dispute concerned an application for indemnity costs of a trial. The matter was heard by the Court of Appeal of New South Wales, comprising Giles JA, Ipp JA, and Tobias JA.

The primary legal issue before the Court of Appeal was whether the respondent, Richardson, should be awarded indemnity costs of the trial, notwithstanding that the appellant, Evans Shire Council, had made a *Calderbank* offer. The Court was required to consider the principles governing the award of indemnity costs in circumstances where a *Calderbank* offer has been made and rejected.

The Court of Appeal refused the application for indemnity costs. The reasoning applied by the Court centred on the established principles for awarding indemnity costs. These principles require a party seeking such costs to demonstrate that the other party's conduct was unreasonable or vexatious, or that there were other exceptional circumstances justifying the departure from the usual order for costs. In this instance, the Court found that the conduct of Evans Shire Council did not meet the threshold for an award of indemnity costs, even in light of the *Calderbank* offer.