Port Kembla Coal Terminal Ltd v Braverus Maritime Inc (No 2)

The case of Port Kembla Coal Terminal Ltd v Braverus Maritime Inc (No 2) involved a dispute between the plaintiff, Port Kembla Coal Terminal Ltd, and the defendant, Braverus Maritime Inc. The plaintiff sought compensation for significant damage caused to Coal Berth No 2 in Port Kembla Harbour by a collision with the SA Fortius, a cape size vessel owned by the defendant. The Federal Court was tasked with resolving the matter and determining the costs associated with the proceedings.

The primary legal issues before the court included whether the defendant should be ordered to pay the plaintiff's costs on an indemnity basis and whether the plaintiff's failure to accept a Calderbank offer warranted such an order. The court had to consider the defendant's arguments against an indemnity costs order, including the reasonable prospects of success of the defendant's claims, the timing of the Calderbank offer, and the quantum of the offer itself.

The court concluded that the defendant should pay the plaintiff's costs up to and including 12 March 2003 on a party/party basis, and thereafter on an indemnity basis. This was due to the plaintiff's offer of compromise which remained open for a period twice as long as required by the rules. The court found that the defendant's refusal to accept the offer was unreasonable, given the defendant's lack of protest or request for an extension, and the fact that the defendant had ample time to consider the offer. The court also dismissed the defendant's arguments regarding the Calderbank offer, finding that the defendant's failure to accept the offer was unreasonable given the doubtful prospects of success of its claims.

The final orders of the court included the defendant paying the plaintiff's costs of the proceedings up to a certain date on a party/party basis and thereafter on an indemnity basis, the defendant paying the plaintiff's costs of a specific motion, and the dismissal of a motion by the Corporation with costs.