Holland v BT Securities Limited

1. The plaintiffs are to pay the defendant's costs of and incidental to the proceedings up to and including 11.00am on 13 December 2021 on a party-party basis.
2. From 11.00am on 13 December 2021, plaintiffs are to pay the defendant's costs of and incidental to the proceedings on an indemnity basis.
3. If the parties are unable to agree costs, the costs are to be assessed by a Registrar of the Court upon application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

O'SULLIVAN J: 1 Judgment was delivered in this matter on 20 July 2023 in which the plaintiffs' claims were dismissed. 2 On 9 December 2021, the defendant had filed and served a formal offer pursuant to r 25 of the Federal Court Rules 2011 (Cth) (FCR) in the sum of $20,000 inclusive of costs and interest. At the same time, the defendant offered the same sum on the same basis by way of a Calderbank offer: Calderbank v Calderbank [1975] 3 All ER 333. 3 I am satisfied that the failure to accept the formal offer was both imprudent and unreasonable. 4 The defendant seeks indemnity costs from the start of the proceedings on the basis there was no prospects of success: Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 801; (1993) 46 FCR 225 at 233 and SNF (Australia) Pty Ltd v Ciba Specialty Chemicals Water Treatments Ltd [2015] FCA 949 at [2]. 5 Although their case was weak, and some of the causes of action had no prospects of success, nonetheless, I am not satisfied the plaintiffs should pay costs on an indemnity basis from the start of the proceedings. 6 Pursuant to FCR 25.14(2), the plaintiffs are to pay the defendant's costs on an indemnity basis from 11.00am on 13 December 2021. 7 The orders of the Court will be: (1) The plaintiffs are to pay the defendant's costs of and incidental to the proceedings up to and including 11.00am on 13 December 2021 on a party-party basis. (2) From 11.00am on 13 December 2021, plaintiffs are to pay the defendant's costs of and incidental to the proceedings on an indemnity basis. (3) If the parties are unable to agree costs, the costs are to be assessed by a Registrar of the Court upon application. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Sullivan.