Mt Cotton Constructions Pty Ltd v Greer (No 2)

Mt Cotton Constructions Pty Ltd sought indemnity costs from Greer following the dismissal of their claim. The respondents, Greer, had filed a counter application which was also dismissed. The matter was brought before the court to determine the appropriate costs order following the dismissal of both the claim and the counter application. The legal issues for the court to decide were whether it was unreasonable for the applicant not to accept an offer to settle under rule 86 before the hearing and whether it was appropriate to award indemnity costs in light of the privilege and Calderbank offers.

The court found that it was unreasonable for the applicant not to accept the offer to settle under rule 86 before the hearing. The applicant's decision to reject the offer was not justified given the strength of the respondents' position and the fact that the applicant had not provided any evidence to support their claim. The court also found that it was appropriate to award indemnity costs in light of the privilege and Calderbank offers. The court noted that the applicant's conduct throughout the proceedings had been unreasonable and that the respondents had been forced to incur significant costs as a result. The court considered the appropriate scale of costs to be awarded and determined that the District Court scale was appropriate given the nature of the proceedings.

The court ordered that the applicant pay the respondents' costs of the proceedings, including the costs of the counter application from 6 November 2015, at the District Court scale on an indemnity basis to be assessed. The court found that the applicant's conduct throughout the proceedings had been unreasonable and that the respondents were entitled to be compensated for the costs they had incurred as a result. The court's decision sends a clear message that parties should not engage in unreasonable conduct in court proceedings, and that they may be held liable for the costs incurred by the other party as a result.