GIO v Nathan Fosse (by his next friend Earl Patrick Fosse)

This matter concerned an appeal from a decision of the Supreme Court of New South Wales regarding indemnity costs. The appellant, GIO, sought to appeal an order made by the primary judge that GIO pay the costs of the respondent, Nathan Fosse (by his next friend Earl Patrick Fosse), on an indemnity basis.

The central legal issue before the Court of Appeal was whether the primary judge had erred in ordering indemnity costs against GIO. Specifically, the court had to consider whether GIO's conduct in the litigation warranted such an order, which is typically reserved for cases where a party has acted vexatiously, oppressively, or unreasonably.

The Court of Appeal found that the primary judge had not erred in making the order for indemnity costs. Their Honours noted that GIO had pursued a "hopeless" defence and had failed to make any reasonable offer of settlement despite the clear evidence against them. This conduct was deemed to be unreasonable and to have unnecessarily prolonged the litigation, thereby justifying the award of indemnity costs.

The appeal was dismissed, and GIO was ordered to pay the costs of the respondent on an indemnity basis.