Simone v Kola (No 3)

The matter of Simone v Kola (No 3) was heard in the Federal Circuit Court of Australia. The plaintiff, Simone, sought indemnity costs against the defendant, Kola, following a series of unsuccessful attempts to resolve the dispute through negotiation and settlement. The court was required to determine whether the plaintiff was entitled to an indemnity costs order and if so, the extent of those costs.

The central legal issue before the court was whether the plaintiff's conduct warranted an indemnity costs order, particularly in light of the unsuccessful Calderbank offers made by both parties. The court had to consider the principles established in previous case law, including the need for a departure from the general rule of costs following the losing party paying the winner's costs. The court needed to assess the conduct of both parties, including the nature and timing of the Calderbank offers, and whether the plaintiff's pursuit of indemnity costs was reasonable.

The court found that the plaintiff's conduct warranted an indemnity costs order, given the unsuccessful settlement attempts and the nature of the Calderbank offers. The court highlighted that the plaintiff's settlement offer was genuine and made in good faith, while the defendant's offer was not. Additionally, the court considered the timing and context of the offers, finding that the plaintiff's pursuit of indemnity costs was reasonable. Consequently, the court ordered Kola to pay Simone's costs on an indemnity basis, departing from the general rule of costs.

The court further ordered that the defendant pay the plaintiff's costs of the application for indemnity costs, which included the costs of two counsel. This decision underscores the importance of genuine and timely settlement offers in litigation, and the potential consequences of failing to make such offers.