Calderbank offer and test of unusual features for indemnity costs

Blundstone v Johnson & Anor [2010] QCA 258

Issue: whether indemnity costs should be allowed following a Calderbank offer.

I refer to my earlier posting wherein leave to appeal was refused in this matter.

Chesterman JA and Atkinson J concurred with Holmes JA, who heard the appeal refused indemnity costs on the basis it did not satisfy the test of “usual features” or fall within the category of misconduct as posited by Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 233-234.  Although, Chesterman JA found it was close to “borderline” and Holmes JA found:

[6] It is not really correct to say that the applicants in this case abandoned their principal argument during the appeal. Their argument at all times turned on the applicability of this court’s decision in Spencer v Nominal Defendant3 to the facts of the present case, although their contentions as to the effect of the decision and of the terms of the contract supposedly embodied by the consent order did have a certain fluidity about them. There is some force in the respondent’s submission that the applicants’ conduct in seeking to appeal smacked of the opportunistic, in circumstances where the delay which had occasioned the need for the District Court judge’s order was brief (one week) and caused no prejudice. The second applicant, of course, was a statutory insurer, and one might question whether its conduct was in conformity with the objects of the Motor Accident Insurance Act, one of which is “to encourage the speedy resolution of personal injury claims resulting from motor vehicle accidents”.4

3 [2008] 2 Qd R 64.

4 Section 3(c).  

[7] But it cannot be said that the applicants’ arguments were entirely without merit, although they were not, in the event, accepted. The case does not possess the unusual feature or features which would justify the court from departing from the usual order for costs. The applicants should pay the respondent’s costs of the application for leave to appeal on the standard basis. The respondent should pay the applicants’ costs of this application.

I refer you to my earlier postings regarding Calderbank offers.

Brisbane Barrister – David Cormack

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