Harvard Nominees Pty Ltd v Tiller (No 5)

In the matter of Harvard Nominees Pty Ltd v Tiller (No 5), the Federal Court addressed the complex issue of costs apportionment among multiple respondents in a litigation concerning allegations of misleading or deceptive conduct. The case involved five respondents, with Harvard Nominees Pty Ltd as the plaintiff, alleging breaches of the Australian Consumer Law by the respondents, including misleading or deceptive conduct. The first two respondents, Simon Tiller and Dimension Agriculture Pty Ltd, were found liable for misleading or deceptive conduct, but no damages were awarded due to the plaintiff's failure to prove loss or damage caused by the conduct. The court was tasked with determining the costs incurred by the parties during the litigation and how these costs should be apportioned.

The court had to consider several legal issues, including the principles governing indemnity costs in relation to Calderbank offers, the appropriate method for apportioning costs among jointly represented parties where some are successful and some are not, and the circumstances under which a Sanderson order might be appropriate. Specifically, the court had to decide whether the unsuccessful respondents should bear any of the successful respondents' costs, and if so, to what extent. The court also needed to address the implications of a misleading and deceptive conduct finding against one of the successful respondents and its impact on the costs apportionment.

The court ruled that indemnity costs orders were not appropriate given the nature of the Calderbank offer, which did not cater to the differing positions of the respondents. The court applied the 'rule of thumb' for jointly represented parties, awarding the successful respondents a proportionate share of the costs, taking into account the differing roles and outcomes for each respondent. It was determined that Mr. Nicoletti, involved as a principal in the misleading conduct, and Mr. Bryce, who performed administrative functions, should not be treated as a single entity for costs purposes. Mr. Bryce, who was wholly successful in defending against the claims, was awarded 25% of the respondents' costs. The court also ruled out a Sanderson order, finding that the unsuccessful respondents' conduct did not warrant them bearing the successful respondents' costs.

The final orders of the court included that the first two respondents were to pay the plaintiff's costs of the proceeding, the plaintiff was to pay a portion of the respondents' costs to the third and fourth respondents, and the plaintiff was to bear the costs of the third and fourth respondents in respect of the judgment, subject to assessment. These orders reflect the court's careful consideration of the unique circumstances of each respondent and the principles of fairness in costs apportionment.