WA Property Holdings Pty Ltd v Colliers International (WA) Pty Ltd

In the matter of WA Property Holdings Pty Ltd v Colliers International (WA) Pty Ltd, the Federal Court was tasked with determining whether indemnity costs should be awarded to Colliers International (WA) Pty Ltd by WA Property Holdings Pty Ltd. The dispute arose from a property transaction where Holdings alleged that it had suffered loss due to Colliers' failure to disclose contamination on the property. Holdings argued that its conduct in pursuing the action against Colliers was reasonable, while Colliers contended that Holdings' actions were unreasonable and that indemnity costs should be awarded.

The primary legal issue before the Court was whether Holdings had discharged the onus of proving that its conduct in continuing with the proceedings against Colliers was reasonable. The Court examined the reasonableness of Holdings' decision to commence the action, its conduct post-commencement, and whether indemnity costs should be awarded based on Holdings' unreasonable behaviour. The Court found that Holdings' pre-action demand and subsequent claims were unsustainable, and that Holdings had little evidence to counter Colliers' denial of knowledge about the contamination. Furthermore, Holdings' conduct was deemed unreasonable as it continued to pursue the proceedings despite clear indications that its claims were unfounded.

The Court concluded that Holdings had failed to establish that its conduct in commencing and continuing the proceedings against Colliers was reasonable. The Court found that Holdings' actions were unreasonable and that the justice of the case warranted an order for indemnity costs. The Court awarded Colliers the costs of the action, including all reserved costs and the application for costs, on a party and party basis up to and including 19 August 2013, and on an indemnity basis from 20 August 2013 onwards. Additionally, Colliers was granted liberty to apply for non-party costs orders if Holdings did not satisfy the costs orders.