Nibbe v Wong (No 2)

In Nibbe v Wong (No 2), the plaintiff sought to enforce a financial agreement against the defendant. The matter was before the Federal Circuit Court, where the plaintiff's summons was dismissed with costs in principal. The primary dispute centred on the enforceability of the financial agreement and the costs associated with the proceedings. The defendant had previously written to the plaintiff, encouraging them to discontinue the proceedings. Additionally, the defendant rejected a subsequent offer from the plaintiff.

The court was required to determine whether the plaintiff should be ordered to pay the defendant's indemnity costs, given that the summons was dismissed with costs in principal. The court considered the principles surrounding Calderbank offers and exceptions to the general rule that costs follow the event. The court examined whether the plaintiff's conduct warranted an order for indemnity costs, despite the summons being dismissed in their favour. The court also considered the defendant's previous correspondence and rejection of the plaintiff's offer.

The court concluded that the plaintiff's conduct did not justify an order for indemnity costs. Despite the summons being dismissed with costs in principal, the court found that the plaintiff's actions did not warrant such an exceptional order. The court emphasised the importance of considering all relevant factors and the need for proportionality in determining costs orders. The court ultimately dismissed the defendant's application for indemnity costs, maintaining the costs order in favour of the plaintiff.