Kazas-Rogaris v Gaddam (No. 2)

The case of Kazas-Rogaris v Gaddam (No. 2) involved a dispute over indemnity costs, specifically in relation to a Calderbank offer that was made but not accepted. The parties were Kazas-Rogaris and Gaddam, and the matter was heard in the Supreme Court of Western Australia. The central issue before the court was whether the plaintiff was entitled to indemnity costs due to the defendant’s failure to accept a Calderbank offer, and if the court should exercise its discretion to award costs given that there was no point of principle involved.

The court considered the precedent set by the case of Petrodel Resources Ltd v Prest Energy Pty Ltd, which provides a framework for assessing indemnity costs in light of a Calderbank offer. The court examined whether the offer was genuine and whether the offeror’s position was strong enough to warrant an award of indemnity costs. It was determined that the offer was indeed genuine and the plaintiff’s position was strong. However, the court noted that the test for indemnity costs is not absolute, and the court retains a discretion to refuse to award costs if there is no point of principle involved.

In exercising its discretion, the court weighed the merits of the case and the conduct of both parties. It was found that there was no point of principle at stake, and therefore, the court declined to award indemnity costs to the plaintiff. The court’s reasoning was grounded in the principle that indemnity costs should only be awarded in exceptional circumstances, and the present case did not meet that threshold. As a result, the plaintiff’s application for indemnity costs was dismissed.

The court concluded that the defendant was not liable for the plaintiff’s costs, and the plaintiff was to bear their own costs of the proceedings. This decision underscores the importance of the court's discretion in indemnity cost applications and reinforces the requirement that there must be a point of principle for such costs to be awarded.