Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No 2)

Kooee Communications Pty Ltd (Kooee) and Primus Telecommunications Pty Ltd (Primus) were parties to proceedings in the Equity Division of the Supreme Court of New South Wales. The dispute concerned an offer of compromise made by Primus to Kooee, which Kooee did not accept. Following the trial, the court made an order regarding costs. Kooee appealed this costs order.

The primary legal issue before the Court of Appeal was whether Primus' offer of compromise, made less than 24 hours before the commencement of the trial, was validly made and therefore capable of impacting the costs order. This involved considering the application of rule 42.15 of the Uniform Civil Procedure Rules 1999 (NSW), which deals with offers of compromise and their consequences for costs, and rule 20.26, which concerns the time for acceptance of offers. The court also considered the principles governing the award of indemnity costs and the general rule that costs follow the event.

The Court of Appeal determined that an offer of compromise made under rule 42.15 must remain open for a reasonable time in the circumstances. It found that an offer made less than 24 hours before trial, without any indication that it would remain open for a reasonable period, was not open for acceptance for a reasonable time and therefore did not attract the cost consequences prescribed by rule 42.15. Consequently, the court overturned the trial judge's costs order.

In lieu of the trial judge's costs order, the Court of Appeal ordered that Kooee pay 50% of Primus' costs of the proceedings in the Equity Division, to be assessed on the ordinary basis. Furthermore, Primus was ordered to pay Kooee's costs of the appeal, also to be assessed on the ordinary basis. The court also granted Primus a certificate under the Suitors' Fund Act 1951 (NSW), subject to eligibility.