The White Ant Co Pty Ltd v Robson (No 2)

The White Ant Co Pty Ltd (Appellant) brought proceedings against Mr. and Mrs. Robson (Respondents) in the District Court. The dispute concerned the Appellant's claim for payment for services rendered and the Respondents' defence and counterclaim. The case reached the Court of Appeal of New South Wales, with Macfarlan and Gleeson JJA and Emmett AJA presiding.

The primary legal issues before the Court of Appeal concerned the costs of the appeal and the application for leave to appeal. Specifically, the court had to determine whether the general rule that costs follow the event should be departed from, and whether indemnity costs should be awarded. A key consideration was whether the Respondents had acted reasonably in refusing offers of compromise made by the Appellant during the proceedings in the District Court.

The Court of Appeal considered the conduct of the parties in relation to the offers of compromise. It was found that the Respondents had not acted reasonably in rejecting the offers, which were considered to be favourable. Applying the principles governing costs, particularly in light of the conduct of the parties and the reasonableness of their actions concerning settlement, the court determined that a departure from the usual order was warranted.

Consequently, the Court of Appeal ordered that the First and Second Respondents pay 40 per cent of the Appellant’s costs of the appeal and the application for leave to appeal.