Portland Marketing (International) Pty Ltd v Wulff and Ors (No.3)

In *Portland Marketing (International) Pty Ltd v Wulff and Ors (No.3)*, the Federal Circuit Court of Australia considered an application for costs following a lengthy and complex trial. The applicant, Portland Marketing (International) Pty Ltd, sought to recover its costs, while the respondents, Wulff and others, also sought their costs. A key point of contention was the appropriate scale upon which costs should be assessed, given the complexity and duration of the proceedings.

The court was required to determine whether the costs of the trial should be assessed on the Federal Circuit Court scale or the Federal Court scale. Additionally, the court had to consider the reasonableness of the applicant's refusal of a *Calderbank* offer made by the respondents at an early stage of the proceedings, which was more favourable than the ultimate outcome achieved by the applicant. The court also examined the reasonableness of the applicant's refusal of a notice of offer to compromise.

Judge Cameron reasoned that the complexity and length of the trial warranted an assessment of costs on the Federal Court scale, rather than the Federal Circuit Court scale, to ensure fair and adequate indemnity for the successful party. The court found that the *Calderbank* offer made by the respondents was a genuine offer of settlement that was unreasonably refused by the applicant. Consequently, the applicant was ordered to pay the respondents' costs of the proceeding, including the costs incurred after the date of the *Calderbank* offer, to be assessed on the Federal Court scale.