Fairhill Coking Coal Pty Ltd v Comiskey (No 3)

Fairhill Coking Coal Pty Ltd filed an action against Comiskey, seeking indemnity costs following the refusal of a Calderbank offer by the respondents. The applicants argued that the circumstances warranted the court's discretion in favour of an indemnity costs order. Additionally, the applicants sought a standard costs order pursuant to the general rule that costs follow the event. The applicants also contended that the proceeding should be dismissed as the respondents had not demonstrated a material change in circumstances in accordance with section 283B(1)(b). The primary legal issues before the court were whether the refusal of the Calderbank offer justified an indemnity costs order and whether the proceeding should be dismissed for lack of prospects of success.

The court examined the relevant considerations for an indemnity costs order, noting that the applicants had provided submissions on this issue. It was determined that the refusal of the Calderbank offer did not meet the threshold for an indemnity costs order. The court considered that the applicants had not provided sufficient justification to warrant the exercise of the court's discretion in this regard. As for the standard costs order, the court found that the general rule applied and that the applicants were not entitled to such an order. Regarding the dismissal of the proceeding, the court held that the respondents had not demonstrated a material change in circumstances warranting dismissal under section 283B(1)(b). Consequently, the proceeding was dismissed without any party bearing the costs of the other.

In summary, the court refused the indemnity costs order and the standard costs order, and dismissed the proceeding. Each party was ordered to bear their own costs.