Re Employ (No 96) Pty Ltd (in liq)

Employ (No 96) Pty Ltd was in liquidation and brought proceedings against several defendants in the Federal Circuit and Family Court of Australia. The dispute involved claims of breach of contract, statutory contraventions, and unjust enrichment, among others. The court was tasked with making orders regarding the costs of the proceedings. The primary legal issues were whether an unaccepted offer of compromise could support an award of indemnity costs, and whether the conduct of the proceedings warranted a variation to the usual costs orders.

The court considered the principle that indemnity costs could be awarded if an offer of compromise was reasonable and made in good faith, but not accepted by the party against whom it was made. However, the court found that the offer of compromise in this case was not reasonable and thus could not support an award of indemnity costs. Furthermore, the court assessed the conduct of the proceedings and determined that there were no exceptional circumstances warranting a variation to the standard costs orders. The court held that the rule of thumb approach to apportionment of costs was appropriate, where multiple plaintiffs and defendants were involved, and some were successful while others were not.

The court dismissed the application for indemnity costs and made orders for the apportionment of costs in accordance with the usual principles. The court did not find any conduct that warranted a departure from the standard approach to costs. The final orders reflected this assessment, with costs apportioned according to the rule of thumb method, and no indemnity costs awarded.