Gino Andrew Bisognin and Leah Joan Bisognin v Hera Project Pty Ltd (ACN 163 685 041) [No 2]

Gino Andrew Bisognin and Leah Joan Bisognin brought an application against Hera Project Pty Ltd seeking indemnity costs. The dispute arose from a property sale transaction where the Bisognins sought to recover costs incurred due to the defendant's conduct during the litigation. The matter was heard in the Supreme Court of New South Wales. The primary focus of the application was whether the defendant's actions warranted an order for indemnity costs under the circumstances of the case.

The legal issues centred on whether the special circumstances of the case justified an order for indemnity costs, particularly considering the defendant's failure to disclose a rival contract of sale late in the trial. Additionally, the court examined the relevance of the abandonment of a proposed ground of appeal and the offers of compromise made in an earlier proceeding. The Bisognins argued that the defendant's conduct warranted such costs due to the late disclosure of a crucial document and the implications of this on the proceedings.

The court considered the principles outlined in Ettinghausen v Australian Consolidated Press Ltd, which set a high threshold for indemnity costs. It found that, while the defendant's conduct was unsatisfactory, it did not meet the criteria for special circumstances as outlined in the cited case. The court held that the late disclosure did not significantly prejudice the Bisognins and that other factors, such as the abandonment of a proposed ground of appeal, did not alter the outcome. Consequently, the application for indemnity costs was refused.