Monie v Commonwealth of Australia (No 2)

In *Monie v Commonwealth of Australia (No 2)*, the appellants sought orders regarding the costs of an application for an extension of the limitation period, a first trial, a retrial, and an appeal. The dispute concerned the appropriate allocation of costs, particularly in light of the varying degrees of success achieved by the parties across different stages of the litigation and the impact of a Calderbank offer. The matter was heard in the Court of Appeal of New South Wales.

The court was required to determine several key issues. These included whether the costs of the first trial should be treated similarly to the costs of the second trial, whether a successful party should be deprived of costs relating to an issue on which they were unsuccessful, and whether that unsuccessful issue was dominant or separable from the overall success. Furthermore, the court had to consider the effect of a Calderbank offer made at the time of the trial, which was not renewed for the appeal, and the impact of a joint Calderbank offer made by three plaintiffs to settle for a specific sum, especially when two plaintiffs recovered more than that sum on appeal and a new trial was ordered for the third plaintiff.

The court reasoned that the costs of the first trial should be awarded to the appellants on the ordinary basis, reflecting their overall success in that phase. For the second trial, the court distinguished between the period before and after 1 February 2006. The appellants were awarded costs on the ordinary basis up to and including that date, and thereafter on an indemnity basis, indicating a significant shift in the assessment of costs due to events or conduct during that later period. The court also ordered the respondent to pay the costs of the appeal and the costs of the present application concerning costs.