Levy v Bergseng (No 2)

The second appeal in the case of Levy v Bergseng was heard by the High Court of Australia. The primary concern of this case was the issue of indemnity costs in the context of an offer to settle. The offer, which was made by the defendant, Bergseng, to the plaintiff, Levy, stipulated that each party would bear their own costs if the offer was not accepted and the plaintiff did not recover more than the amount offered. However, the offer did not comply with the relevant court rules regarding the form and content of offers to settle. The key legal issues that the court had to resolve were whether the offer could still be considered under the rules and whether it could be used as a basis for an indemnity costs order.

The High Court held that the offer, although not strictly compliant with the rules, was intended to have effect only in accordance with those rules. The court determined that the offer did not meet the procedural requirements for an indemnity costs order as it was not made in the prescribed manner. However, the court also found that the offer was not intended to have any effect outside of the rules and thus, in this specific context, it could still be considered. As a result, the court concluded that no indemnity costs were warranted. Instead, the court ordered that the defendant pay reasonable costs of the appeal up to the time of the offer and interest on the costs that had already been paid.

In light of the above, the High Court dismissed the appeal regarding indemnity costs. It also ordered that the defendant pay the plaintiff's reasonable costs of the appeal up to the time of the offer, as well as interest on the costs that had been paid. This decision underscored the importance of strict compliance with court rules concerning offers to settle and the potential consequences of failing to adhere to these rules.