v & v Properties P/L as t'ee for the v & v Properties Unit Trust No 4 v CSR Building Products Ltd (No 2)

The plaintiff, v & v Properties P/L as trustee for the v & v Properties Unit Trust No 4, brought an action against CSR Building Products Ltd. The nature of the dispute revolved around the plaintiff's claim for indemnity costs following the defendant's refusal of a settlement offer. The offer was communicated by the plaintiff's solicitors to the defendant's solicitors in a letter marked "without prejudice save as to costs." The crux of the issue was whether the defendant was given adequate time to consider the offer, which is a necessary condition for the plaintiff to be entitled to indemnity costs.

The court was required to decide if the defendant had sufficient time to consider the plaintiff's settlement offer. The plaintiff's solicitors had written a letter to the defendant's solicitors marked "without prejudice save as to costs," which raised the question of whether this constituted a proper offer and if the defendant was provided with enough time to consider it. The case referenced BHP Coal Pty Ltd & Ors v O & K Orenstein & Koppel AG and Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) to understand the principles governing indemnity costs and the requirements for a valid offer.

The court found that the defendant was not given sufficient time to consider the plaintiff's settlement offer. Consequently, the plaintiff was not entitled to indemnity costs. The reasoning hinged on the requirement that the defendant must be given reasonable time to consider an offer, which was not provided in this instance. The court ruled in favour of the defendant and ordered that the plaintiff bear the costs of the action.

The final order of the court was that the defendant, CSR Building Products Ltd, was to pay the plaintiff’s costs of and incidental to the action, to be assessed on the standard basis. This ruling underscores the importance of providing adequate time for consideration of settlement offers in litigation.