Tred Consultants Pty Ltd v Kirana Training Pty Ltd (No.4)

In the case of Tred Consultants Pty Ltd v Kirana Training Pty Ltd (No. 4), the defendant, Kirana Training, sought indemnity costs following its successful defence against the plaintiff, Tred Consultants. The dispute involved a claim for unpaid invoices related to training services provided by Tred to Kirana. The matter was heard in the Federal Circuit Court of Australia. The central legal issues focused on whether the defendant was entitled to indemnity costs based on three Calderbank offers made to the plaintiff, and if so, whether this entitlement extended to the referee's costs.

The court examined the circumstances under which indemnity costs may be awarded and whether the defendant's Calderbank offers were genuine and reasonable. It was established that an offer under Calderbank is one made without prejudice to the offeror's position on costs, and if the offer is more favourable to the opposing party than the final outcome, it may warrant an award of indemnity costs. The court assessed the reasonableness of each offer and the plaintiff's conduct in response to these offers. Kirana Training argued that the plaintiff's refusal to accept the offers despite their favourable terms justified an award of indemnity costs.

The court determined that the defendant's Calderbank offers were reasonable and genuine, and the plaintiff's refusal to accept them was unreasonable. Consequently, the defendant was entitled to indemnity costs. However, the court held that the defendant was not entitled to indemnity costs for the referee's fees as the referee was not a party to the Calderbank offers. The court's decision balanced the need to encourage genuine settlement negotiations with the protection of parties from unreasonable refusals to accept favourable offers. The plaintiff was ordered to pay the defendant's costs up to the point of the last successful Calderbank offer, excluding the referee's costs.