Findley v MSS Security Pty Ltd and Ors (No.2)

In *Findley v MSS Security Pty Ltd and Ors (No.2)*, the applicant sought to recover costs from the respondents. The respondents sought an order for their costs to be paid on an indemnity basis or, alternatively, on a party/party basis, and that these costs be taxed under Part 40 of the *Federal Circuit Court Rules 2001* (Cth). A key element of the dispute revolved around a *Calderbank* offer made by the respondents to the applicant, which the applicant had refused.

The central legal issue before Judge McNab was whether the respondents were entitled to an order for their costs on an indemnity basis, given the applicant's refusal of the *Calderbank* offer. The court was required to consider the reasonableness of the applicant's repudiation of the offer and its implications for the costs order.

Judge McNab reasoned that the applicant's refusal of the *Calderbank* offer was unreasonable. Applying the principles established in cases concerning *Calderbank* offers, the court determined that the offer was a genuine attempt to resolve the dispute and that its rejection by the applicant was not justified. Consequently, the court found that the respondents had established grounds for an order for costs on an indemnity basis from the date of the offer.

The court ordered that the applicant pay the respondents’ costs on an indemnity basis from 21 September 2018, with an exception for the costs associated with the preparation of a specific affidavit. Furthermore, pursuant to Rule 21.02 of the *Federal Circuit Court Rules 2001*, the proceeding was referred to a Registrar or Senior Registrar for the determination and fixing of a lump sum of costs.