Moss v Lowe Hunt & Partners Pty Ltd (No 2)

In Moss v Lowe Hunt & Partners Pty Ltd (No 2), the plaintiff, Mr Moss, sought costs in relation to proceedings against Lowe Hunt. The case revolved around an offer of compromise and the adequacy of the evidence presented to support the claims. The Supreme Court of Victoria was tasked with determining the appropriate costs order.

The court had to decide whether the offer of compromise made by the plaintiff was sufficient to warrant a costs order on an indemnity basis. The plaintiff argued that the defendant had not provided a proper basis for assessing the offer, while the defendant contended that the plaintiff had failed to substantiate his claims adequately. Additionally, the court had to consider whether the proceedings should have been transferred to the Federal Magistrates Court.

The court found that the defendant had not provided sufficient evidence to substantiate their claims, particularly in relation to the calculation of the damages sought. The defendant's offer of compromise was made without adequate evidence, which undermined the legitimacy of the offer. Furthermore, the court noted that the suggestion of transferring the proceedings to the Federal Magistrates Court was made after the offer of compromise was served, implying it was a response to the size of the offer. The defendant did not take appropriate steps to address the inadequacy of the forum before making the offer.

The court concluded that the plaintiff was entitled to costs on a party-party basis up to the date of the offer of compromise, and on an indemnity basis thereafter. The reasoning was that the offer of compromise was made without a proper basis, and the defendant had failed to provide adequate evidence to support their claims.

The final order was that the defendant pay the plaintiff’s costs, including any reserved costs, on a party-party basis up to 23 March 2009, and thereafter on an indemnity basis.