Tan Republic Pty Ltd (ACN 147 290 926) v Isabella Shop Fitout and Design Pty Ltd (ACN 147 193 815) (No. 2)

Tan Republic Pty Ltd, the plaintiff, instituted proceedings against Isabella Shop Fitout and Design Pty Ltd, the defendant, along with two individuals, the first and third defendants, who were connected to the corporation. The plaintiff sought damages for breach of contract and misleading or deceptive conduct, as well as an account of profits. The first and third defendants were found to have acted in concert with the corporation and were jointly liable for the damages awarded to the plaintiff. The first defendant was also found to have breached the terms of a settlement agreement. The plaintiff sought indemnity costs in relation to the proceedings against the corporation and the first defendant.

The central issue before the court was whether the plaintiff's offer of compromise, made to the corporation and the first defendant, satisfied the requirement under the relevant legislation for the offer to be made to all defendants. The court determined that the offer was made to all defendants, as the corporation and the first defendant were acting in concert and were jointly liable for the damages. The court also considered whether the offer was open for a reasonable period of time and whether there was an element of compromise involved. The court found that the offer was open for a reasonable period of time and that there was an element of compromise, as the plaintiff had agreed to dismiss the proceeding against the corporation and the first defendant if the defendants paid the plaintiff's costs up to a certain date.

The court awarded indemnity costs to the plaintiff against the corporation and the first defendant, but not against the third defendant, as the plaintiff's claim against the third defendant was unsuccessful. The court considered the conduct of the litigation by the parties and determined that the plaintiff's conduct warranted an order for indemnity costs, while the defendants' conduct did not. The court also considered the close relationship between the defendants and the impact it had on the litigation. The court awarded costs to the plaintiff against the corporation and the first defendant on an indemnity basis, while the third defendant was ordered to pay their own costs.

The court dismissed the third defendant's application for costs against the plaintiff and ordered that the plaintiff and the third defendant each pay their own costs of the proceedings. The court also ordered that the corporation and the first defendant pay the plaintiff's costs of the proceedings on a party/party basis until a certain date and thereafter on an indemnity basis. The court granted liberty to the plaintiff and the defendants to apply for costs to be paid personally by the former solicitors for the defendants.