Timberwolf Planting Pty Ltd v Forrester

In the case of Timberwolf Planting Pty Ltd v Forrester, the plaintiff commenced proceedings in the District Court in 2019, which were later transferred to the Supreme Court in 2022. The plaintiff discontinued the proceedings in May 2024, and the defendants argued that the plaintiff's conduct had unduly prolonged the proceeding and caused them to incur costs which they should not have to bear. The plaintiff, on the other hand, argued that the delay was partly caused by the defendants’ inadequate disclosure and their own delay in providing an expert report.

The legal issues before the court were whether the plaintiff's conduct of the proceeding was so unreasonable as to warrant an order that it pay the defendants’ costs on the indemnity basis, and whether the defendants acted unreasonably in not accepting the plaintiff’s offer of compromise such that no costs order should be made in favour of the defendants after the date of the offer. The court found that the plaintiff's conduct was not so unreasonable as to warrant an indemnity costs order, but that the defendants were entitled to recover costs from the plaintiff on the standard basis. The court also found that the defendants' refusal of the plaintiff's offer of compromise was unreasonable, and that no costs order should be made in favour of the defendants after the date of the offer.

In summary, the court ordered that the plaintiff pay the defendants' costs of the discontinued proceeding from 17 April 2024 up to and including 3 May 2024, and that the defendants' costs of the discontinued proceeding up to and including 3 May 2024, including the costs referred to in the orders of Muir J dated 3 May 2024, are to be assessed on the standard basis if not agreed. The court further ordered that the plaintiff pay the defendants' costs the subject of these orders and paragraph 3 of the orders of Muir J dated 3 May 2024 within 28 days of the amount of those costs being agreed or assessed, and that the defendants are to pay 90% of the plaintiff's costs of and incidental to the hearing on 6 June 2024 to be assessed on the standard basis if not agreed.