COMPANY LAW – where the court found there was oppressive conduct of
the plaintiff by the defendant – where the court found
that the defendant
breached a joint venture agreement and engaged in unconscionable conduct and
Source
Original judgment source is linked above.
Catchwords
COMPANY LAW – where the court found there was oppressive conduct ofthe plaintiff by the defendant – where the court foundthat the defendantbreached a joint venture agreement and engaged in unconscionable conduct andassessed damages – whetheran order should be made for the transfer of theplaintiff’s shares to the defendant and the timing of this orderPROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS –COSTS – Indemnity costs – where a written offerwas made by theplaintiff to settle the action – whether this was a Calderbank offer– whether the conduct of the defendantwas such that an order forindemnity costs should be made
Corporations Act 2001 (Cth) ss
232, 233
Australian Medical Innovations Pty Ltd v Go Medical Industries
WASC 22 April 1996, considered
Bhagat v Royal Alliance Life Insurance
Australia Ltd [2000] NSWSC 159, considered
Brown v Barber [2020]
WASC 84
(2020) 19 ASTLR 56, considered
Campbell v Backoffice Investments Pty
Ltd [2009] HCA 25
(2009) 238 CLR 304, applied
Chaina v Alvaro Homes Pty Ltd
[2008] NSWCA 353, cited
Colgate Palmolive Co v Cussons Pty Ltd
[1993] FCA 801
(1993) 46 FCR 225, applied
Di Carlo v Dubois
[2002] QCA 225, cited
Harrison v Schipp [2001] NSWCA 13,
considered
Jenkins v Enterprise Gold Mines NL (1992) 6 ACSR
539,
considered
LPD Holdings (Aust) Pty Ltd v Phillips & Anor
[2013] QSC 225
(2013) 281 FLR 227, applied
Legal Services
Commissioner (Qld) v Bone [2014] QCA 179, cited
New South Wales v
Dueeasy Pty Ltd (1992) 9 BCL 148, considered
Oshlack v Richmond River
Council [1998] HCA 11
(1998) 193 CLR 72, applied
Pedro X Pty Ltd v
SHRL Ventures Pty Ltd [2025] QSC 268, cited
Rapuano v
Karydis-Frisan [2013] SASCFC 8, considered
Re Gunyahweh Pty Ltd
[2023] NSWSC 1133, considered
Re Hollen Australia Pty Ltd [2009] VSC
95
(2009) 27 ACLC 199, applied
Re Spargos Mining NL [1990] WASC 32
(1990) 3 WAR 166,
considered
Sanford v Sanford Courier Service Pty Ltd (1986) 10 ACLR
549, considered
Scott v Aulich [2025] FCA 1329,
considered
Shanahan v Jatese Pty Ltd [2018] NSWSC 1088, considered
Tisdall v Omeros [2019] QSC 236, considered
Umoona Tjutagku
Health Service Aboriginal Corporation v Walsh [2019] FCAFC 32
(2019) 268
FCR 401, considered
Judgment (93 paragraphs)
[1]
COMPANY LAW - where the court found there was oppressive conduct of the plaintiff by the defendant - where the court found that the defendant breached a joint venture agreement and engaged in unconscionable conduct and assessed damages - whether an order should be made for the transfer of the plaintiff's shares to the defendant and the timing of this order
[2]
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - Indemnity costs - where a written offer was made by the plaintiff to settle the action - whether this was a Calderbank offer - whether the conduct of the defendant was such that an order for indemnity costs should be made
[1] This is a hearing as to the final orders to be made consequent on the judgment given in Pedro X Pty Ltd v SHRL Ventures Pty Ltd.[1]
[2] By that decision, the Court:
[29]
(a) Declared that the defendant breached the Joint Venture Agreement (JVA).
(b) Declared the agreement dated 18 August 2022 was void.
(c) Alternatively to (b), pursuant to s 237 of the Australian Consumer Law (ACL), set aside the agreement dated 18 August 2022.
(d) Found the defendant engaged in unconscionable conduct contrary to s 20 of the ACL_._
(e) Assessed the plaintiff's damages arising from the breaches of contract or for breaches of the ACL to be $556,419.60.
(f) Found that the defendant engaged in oppressive conduct within the meaning of that term contained in section 233 of the Corporations Act 2001 (Cth) (the CA).
[30]
(a) Whether an order should be made for the transfer of the plaintiff's shares to the defendant and, if so, the form of that order.
(b) What the order for costs should be i.e. should an award of indemnity costs be made.
[31]
[4] The plaintiff submits that judgment should be ordered against the defendant in the sum of $556,419.60 plus interest and that upon satisfaction of the judgment debt the plaintiff's shares should be transferred to the defendant.
[5] It is submitted that it is appropriate that the final relief makes provision for the shares to be transferred to the defendant.
[6] It is submitted the proposed orders are within power under s 233 of the CA_._ This section provides a broad discretion on the court. It is submitted this is preferable to an order for purchase which would require ongoing supervision of the court.
[7] It is also submitted that without the proposed order, the plaintiff is left with no shares and potentially no judgment monies when it has been the subject of oppression.
[8] As to the defendant's submissions, it cannot have the relief it seeks because there was no counter claim. It is submitted the case was fought on the basis the shares had no value because the plaintiff was excluded from the business. Also, in reality, the shares would have no value on the open market. If indeed there is a value, it would be to the defendant's benefit to receive them.
[9] The reason why the power should be exercised is because it would end the oppression of the plaintiff. The proposal is a sensible and pragmatic way to end the relationship.
[10] It cannot be right that the oppressed party should have to, without condition, transfer its shares to the defendant where the defendant engaged in both oppression and unconscionable conduct. The loss here is not the loss of value but the loss of profits.
[32]
[11] The defendant submits that the court should not make an order for the purchase of shares under s 233(1)(e) of the CA because neither party has led evidence as to the fair price of the shares. It is submitted the court cannot take judicial notice that the loss of profits would be equal to the fair price of the shares, and this is not proven. It is accepted the court can make an order for compensation for breach of contract or under the ACL but not under the CA. Ordinarily, the order for compensation under the CA is calculated by assessing the fair price for the shares and there is no expert evidence on this point.
[12] It is submitted it is objectionable for the court to make an order for compensation for breach of contract, or under the ACL and an order for the transfer of shares. This is because it uses the courts power to make orders under s 233(1)(j) of the CA to secure the defendants obligation to pay a judgment debt which is not within the scope of the remedy of oppression. This allows the plaintiff to continue to have a right to the management and control of the defendant until such time as the judgment debt is paid which is inconsistent with the case that is being run. It is submitted that the fact that a judgment debtor may not be able to pay a judgment debt is an ordinary hazard of litigation. The problem for the court is that it is assessed the amount of compensation without accounting for the value of the shares which remain in the hands of the plaintiff.
[13] It is submitted that the plaintiff should be required to surrender the countervailing benefit as a condition of the court making the order for damages in that amount because the judgment for damages is not sound unless the countervailing benefit has been surrendered. In those circumstances, the appropriate order of the court is the defendant pay the plaintiff damages on the condition precedent that the plaintiff transfer to the defendant its shares in Tweed Heads Logistics Pty Ltd.
[33]
(1) The Court can make any order under this section that it considers appropriate in relation to the company, including an order:
[34]
(b) that the company's existing constitution be modified or repealed;
[35]
(c) regulating the conduct of the company's affairs in the future;
[36]
(d) for the purchase of any shares by any member or person to whom a share in the company has been transmitted by will or by operation of law;
[37]
(e) for the purchase of shares with an appropriate reduction of the company's share capital;
[38]
(f) for the company to institute, prosecute, defend or discontinue specified proceedings;
[39]
(g) authorising a member, or a person to whom a share in the company has been transmitted by will or by operation of law, to institute, prosecute, defend or discontinue specified proceedings in the name and on behalf of the company;
[40]
(h) appointing a receiver or a receiver and manager of any or all of the company's property;
[41]
(i) restraining a person from engaging in specified conduct or from doing a specified act;
[42]
[15] Section 232 of the CA permits an application for relief to be made where a company's affairs are being conducted in an oppressive, unfairly prejudicial or unfairly discriminatory manner or in a manner contrary to the interest of the members as a whole. Section 233 provides broad powers on a court and can even be used to replace the management structure of a company.[2]
[16] As was said by the High Court in Campbell v Backoffice Investments Pty Ltd[3], ss 232 and 233 are to be read broadly and are not to be the subject of judge-made limitations.
[17] A commonly used remedy under s 233 is an order for the purchase of shares of the oppressed member by the other members of the company or by the company itself.[4]
[18] The principal contention by the defendant is that there is no evidence of valuation of the shares and the amount of compensation should be the assessed value. The plaintiff on the other hand submits that the discretion under s 233 of the CA is a broad one that permits the orders sought.
[19] In Re Hollen Australia Pty Ltd[5] it was held that:
[43]
(a) The impecuniosity of the oppressor should not be a relevant factor in ordering the purchase of the oppressed party's shares. This is because the oppressor could claim not to be able to afford the shares and yet remain in control of the business. This would result in unfairness.
(b) Generally, the purpose of granting a remedy under s 232 is to bring an end to the oppression and to fairly compensate the person oppressed.
(c) "Typically, the oppression can be ended and the oppressee properly compensated by the oppressor being ordered to acquire the oppressee's shares at a fair value."
(d) "Bearing in mind these principles, circumstances may dictate that the most appropriate remedy to bring an end to oppression and to fairly compensate the person oppressed is a winding up."
[44]
[20] In LPD Holdings (Aust) Pty Ltd v Phillips & Anor[6] Philip McMurdo J at [57] accepted these principles. His honour noted that the court could make some compensatory order under s 233. This is because one of the recognised principles of so-called oppression proceedings is to compensate the member for the oppressive conduct. In effect, the court is awarding compensation for breach of duty. His honour then said at [58]:
[45]
"Therefore in principle, there could be no objection to an order that directors who have conducted the affairs of the company in a way which engages s 232, should make a payment to compensate an oppressed shareholder for a loss which is distinct rather than derivative from a loss of the company."
[46]
[21] Ordinarily, as the defendant submits, the amount of compensation would be the adjusted value of the shares.[7] However, in this particular case the court found[8] that the defendant engaged in unfair oppression against the plaintiff as:
[47]
(a) there was a failure by the defendant to observe the agreed approach to the joint management of the Tweed Heads store;
(b) upon the plaintiff raising concerns, the defendant sought to enforce a buyout, which did not proceed;
(c) when the share sale did not proceed, the defendant took over the business for itself, and thereafter without consultation or agreement with the plaintiff:
(d) made all operational and business decisions itself;
(e) employed Mr Singh in a full-time role;
(f) caused the business to pay wages to Mr Singh and Mr Grewal, largely in place of a dividend, and in circumstances where they did not work full-time in the business;
(g) paid no money to the plaintiff, a 50% shareholder;
(h) represented itself as the sole proprietor of the business to the franchisor;
(i) did not inform Mr Augustine of nor involve him in any more decisions;
(j) ignored the decision-making provisions of the JVA;
(k) refused the plaintiff access to the financial records; and
(l) even during the period of the exclusion, Mr Singh and Mr Grewal still considered Mr Augustine to be bound by his obligations and duties as a director.
[48]
[22] It seems to me to be quite unfair to require the plaintiff to transfer the shares back to the defendant, thereby losing any rights concerning the company and be left in the position of potentially having a hollow judgment that may never be satisfied. This seems to me to be contrary to the spirit of s 233. The defendant may well unfairly achieve its purpose of locking the plaintiff out of the company forever without ever compensating him. I note in this case there was an attempt simply to close the business in March 2025 which could potentially leave the defendant without any assets.
[23] When I consider the decision of LPD and the broad terms of s 233 of the CA[9], I am persuaded that the court does have a power to make an order as proposed by the plaintiff and in the circumstances of this case it is appropriate to make the order sought by the plaintiff.
[24] On the issue of the value of the shares, it is true that no expert evidence was called. However, the court is concerned here with shares which were held by a share holder who was locked out of the company by the defendant. If a hypothetical prudent purchaser[10] was made aware of the circumstances of this case, it is hard to imagine that such a person would be interested in a buy-in at any price. In reality, it is most likely the shares in this particular case are not worth anything except to the defendant. In the circumstances, I am persuaded to make the order sought by the plaintiff.
[25] Such an order fairly ends the oppression and is intended to bring the relationship of the parties to an end with limited, if any, court supervision. I do not consider the approach by the defendant to be a fair one.
[26] However, the defendant makes a fair point that it would be quite wrong to allow the plaintiff an entitlement to future profits or any involvement in company management when damages have now been assessed which take into account that fact.
[27] In those circumstances, I am persuaded to make an order which prevents the plaintiff from claiming or receiving such profits except to the extent they are set off against the judgment debt. Such an order will permit the parties to return to court if any issue of concern arises.
[49]
[28] The plaintiff's submission is that the costs should follow the event and the defendant's conduct as a whole justifies an order for indemnity costs of the whole proceeding. It is submitted that the defendant's conduct justifies the conclusion that there was unreasonableness and irresponsibility beyond the merits of the defendant's case. It is submitted the court made multiple direct findings of dishonesty; there was collusion between the defendant's witnesses and the defendant sought to defeat the plaintiff's claim by closing the business shortly before trial in an effort to destroy the asset of the joint venture. The defendant maintained allegations that the plaintiff committed fraud or was dishonest which were unfounded, and the defendant caused the adjournment of the first listing of the trial.
[29] While the court would be reluctant to order indemnity costs against a litigant in person, it should be noted that Mr Singh was an experienced Malaysian lawyer who demonstrated knowledge and understanding of the court process and the circumstances did not arise from a lack of understanding on his part.
[30] The final point is that the plaintiff made a Calderbank offer on 21 April 2023 that it would accept $550,000 inclusive of costs and interests to resolve the proceedings. This offer was rejected by the defendant. The projected outcome was remarkably similar to the findings which were ultimately made. The plaintiff achieved a better result at trial. The plaintiff was forced to incur substantial cost of progressing litigation for more than two years after the offer. The defendant's rejection of the offer was unreasonable and this in combination with the conduct justifies costs on an indemnity basis.
[50]
[31] The defendant submits that there are no unusual or special circumstances to justify an award for indemnity costs.
[32] It is relevant in this case that the defendant was self-represented at trial, and a court may forbear an order for indemnity costs in such a situation. With respect to the fact that Mr Singh is a lawyer, there was no evidence that he was a litigation lawyer aware of Queensland conventions. It is submitted the defendant had a limited understanding of the laws surrounding duress, unconscionable conduct and oppression. There is nothing to the point that witnesses got their heads together which may have been the result of Mr Singh's limited understanding of litigation and Queensland practice.
[33] With respect to the Calderbank offer made on 21 April 2023, it is submitted that this is not in truth a Calderbank offer as it sought to extract rights and liberties which went beyond the scope of the litigation. The defendant relies on paragraphs 19(g) and 19(h) of the offer and submits that this proves its point.
[34] It is further submitted that it was not unreasonable for the defendant not to accept the offer. Firstly, the plaintiff made an offer which purported to bind its directors and related entities which were not named. Secondly, the offer required the defendant to cause its directors and related entities to meet the release condition. Thirdly, the offer stipulated as a condition that the defendant must meet the release and indemnity conditions. It was not unreasonable for the defendant to refuse this offer when it did not know the actual liabilities which would be the subject of the release and indemnity. Fourthly, the offer was made on 21 April 2023- before a reply was served; any lay evidence was filed and served and any expert evidence on quantum was filed and served. It was practically impossible for a self-represented litigant at that stage of the proceeding to form a reliable assessment on the risk of liability and the amount of damages which might be assessed.
[35] On the issue of delinquency, it is noted that the jurisdiction to order costs does not exist to punish a litigant who is delinquent. The plaintiff needs to prove that the defendant engaged in unreasonable conduct which is sufficiently serious to justify the making of an order for indemnity costs, and the conduct caused a material increase in costs. It was submitted there is insufficient evidence that any unreasonable conduct caused a material increase in costs. The defendant does not resile from the fact that some of the witnesses were found to be untruthful and that there were some findings of dishonesty. But not all statements of dishonesty can be attributed to the defendant- for example, Ms Garrett. Any findings of collusion do not assist the plaintiff as the court found that Mr Singh assisted some of the witnesses in the preparation of the affidavits and in some cases the witnesses got their heads together. It is not unusual for representatives to assist witnesses in the preparation of their evidence. The court did not find the defendant orchestrated witnesses to provide false evidence.
[51]
[39] I first turn to the issue of the Calderbank offer.
[40] In this particular case, the offer dated 21 April 2023 was served after the defence was filed but before the reply.
[41] The offer was as follows:
[52]
"19. However, our client is aware of the commercial exigencies of this kind of litigation and accordingly makes the following offer to settle these proceedings, with no admission, and without prejudice:
[53]
(a) This offer is conditional upon entry into a deed containing the following terms ("Deed");
(b) You shall pay our client the settlement sum of $500,000 ("Settlement Sum") in the manner set out in paragraph 19(d) below;
[54]
(d) The Settlement Sum shall be paid to our client within 14 days of written execution of the Deed;
[55]
(e) Within 7 days of the payment of the Settlement Sum:-
[56]
(i) our client shall sign any documents necessary to transfer all of its shares in Tweed Logistics Pty Ltd to your client, or its nominee;
(ii) the parties seek orders by consent dismissing our client's Claim with no order as to costs.
[57]
(f) Upon and from the date of execution of the Deed each of the parties and their respective related entities and directors shall respectively release each of the other respective party and their respective related entities and directors, from all current and future Claims either party may have or have had in relation to arising out of to any fact pleaded in any document filed in the proceeding; and
[58]
(g) Upon and from the date of execution of the Deed you shall indemnify our client and its related entities and directors in relation to any and all liabilities incurred in relation to the operation of the Tweed Heads store including without limitation under any lease, under the franchise agreement, under any supply agreement (including for the supply of utilities and services) and any other liability connected to the operation of the Tweed Heads store or otherwise arising out of or in connection with the Joint Venture Agreement.
[59]
This offer is open for acceptance for 15 days from the date of this letter, after which time it shall lapse and no longer be capable of acceptance.
If the Defendant does not accept the Offer and does not obtain a better outcome at trial, our client will rely upon this correspondence on the question of costs, which will be sought on the indemnity basis in accordance with the principles laid down in Calderbank v Calderbank [1975] 3 All ER 333.
[60]
[42] It has previously been held that where a Calderbank offer seeks to impose obligations on third parties it may be that the offer is not a valid one.
[43] In Umoona Tjutagku Health Service Aboriginal Corporation v Walsh[11] it was said that the offer in that case was not a valid Calderbank offer because it sought to impose obligations vis a vis third parties.
[44] Likewise, if there is reference to other claims then it may not be a true Calderbank offer and it may not be unreasonable to refuse it. In New South Wales v Dueeasy Pty Ltd[12] Giles J noted that the fact there was the possibility of claims other than those raised in the arbitration led one to the conclusion that the offer was not a true Calderbank offer. Similar statements were made in Australian Legal Innovations Pty Ltd v Go Medical Industries,[13]Brown v Barber[14] and Rapuano v Karydis-Frisan[15]
[45] Another aspect to be considered is that the Calderbank offer needs to be certain. If the offer is ambiguous then it may not be unreasonable to reject it.[16]
[46] I accept the defendant's submissions.
[47] Having looked at the terms of the offer, it is my opinion that it is not a true Calderbank offer for the following reasons:
[61]
(a) Paragraph 19(f) required third parties to be involved.
(b) The paragraph did not identify the related entities.
(c) It potentially related to other claims which were not the subject of the proceedings.
(d) It was therefore ambiguous.
(e) Similar issues arise with respect to paragraph 19(g).
[62]
[48] Based on the authorities to which I have referred, I conclude this is not a true Calderbank offer and the defendant was not unreasonable in rejecting it.
[49] But I also conclude that the defendant was not unreasonable in rejecting it because it was made very early in the proceedings, even before the pleadings had closed. I conclude it was not really possible to make a realistic conclusion of any loss suffered until the delivery of Mr Lytras' report in June 2024. Much of the affidavit material was delivered from mid-2024 also. I accept the defendant's submissions in this regard.
[63]
[50] I now turn to the issue concerning the conduct of the defendants.
[51] On the issue of indemnity costs, the following propositions may be discerned from the cases:
[64]
(a) Costs orders are not made to punish an unsuccessful party but there may be some circumstances revealing a "delinquency" on the part of the unsuccessful party leading to a costs order on an indemnity basis which more adequately compensates the successful party.[17]
(b) The categories in which indemnity costs orders are made are not closed but there needs to be some unusual or special feature of the case justifying the order, including prolongation of a case by groundless contentions or the imprudent refusal of an offer of compromise.[18]
(c) The award of indemnity costs should not be too readily available.[19]
(d) The ordinary rule is that costs be ordered on a party/party basis however there can be cases where the court will depart from this rule.[20]
(e) The question is exercised having regard to the relevant principles and the particular circumstances of the case.[21]
[65]
[52] In Tisdall v Omeros[22] Bradley J noted that where a party to a litigation has acted in a way plainly unreasonable so as to cause another party to incur increased costs, the court may redress this position by allowing the affected party to recover its costs on a more generous basis. The departure from the usual practice is justified by some special or unusual feature in the case. There is no exhaustive list as to the circumstances where this may occur. Just because evidence is not accepted or even if evidence is found to be false, this does not necessarily justify an award for indemnity costs.[23]
[53] The courts normally make allowances for self-represented defendants.[24] In this case, the defendant was self-represented at trial by its director, Mr Singh. However, Mr Singh is a qualified lawyer and is in a different category to being a self-represented litigant. Mr Singh on his own evidence was experienced in commercial matters. But I accept there is no evidence he was experienced in litigation.
[54] It is true that the court made findings of credit as against the defence witnesses but in large part the case became a trial of questions of fact as to what happened and what was said. The defendant was entitled to put forward its own evidence to challenge the plaintiff's case even if that was ultimately rejected.
[55] It is not really possible to apportion how much of the case related to genuinely disputed questions of fact and to collateral issues of credit.
[56] On the issue of the adjournment, it is true that the defendant was to call more witnesses but on the other hand the plaintiff issued late subpoenas and the timetable did seem to be a compressed one.
[57] Ultimately, when I consider all matters, I am not persuaded this is a case in which I should order indemnity costs against the defendant. I consider the principles expressed in Harrison v Shipp are applicable here.
[58] I have determined in the exercise of my discretion that an order for costs (including reserved costs) on the standard basis should be made.
[66]
[59] For the reasons given I make the following orders:
[67]
(a) the defendant breached the Joint Venture Agreement.
(b) the agreement dated 18 August 2022 is void.
(c) the defendant engaged in unconscionable conduct contrary to section 20 of the Australian Consumer Law.
(d) the defendant engaged in oppressive conduct within the meaning of that term contained in section 233 of the Corporations Act 2001 (Cth).
[68]
Judgment for the plaintiff in the amount of $564,619.86 including $556,419.60 for damages and $8,500.26 for interest pursuant to section 58 of the Civil Proceedings Act 2011 (Qld) from 30 June 2025 to 10 November 2025 and a further sum for pre-judgment interest calculated daily on the sum of $556,419.60 at the rate of 3.925% per annum until the date of these orders.
Upon satisfaction of the judgment debt referred to in order 2 above by the defendant, the parties will forthwith do all acts and things and sign such documents required to cause the transfer of the plaintiff's shares in Tweed Heads Logistics Pty Ltd to the defendant.
(a) is not entitled to participate in any dividends or receive any profits in respect of its shareholding in Tweed Logistics Pty Ltd relating to any time after the date of this order;
(b) must not and is hereby restrained from taking the following actions in respect of Tweed Heads Logistics Pty Ltd:
(i) participating in the management; or
(ii) exercising any other rights of a member under the Corporations Act 2001 (Cth), any constitution or any other source at law.
[70]
I order the defendant pay the plaintiff's costs of and incidental to the proceeding (including reserved costs) on the standard basis as agreed or to be assessed.
[9] I note section 233(1)(j) of the CA empowers the court to order someone to do a specified act which can include a payment of money- see Shanahan v Jatese Pty Ltd[2018] NSWSC 1088 at [325].
[36] There are no special circumstances to justify such an order. With respect to any allegation of fraud, this was a collateral issue relevant to credit raised in the affidavits.
[37] As regards the adjournment, it is submitted that on 25 March 2025 the plaintiff served on Mr Singh and Mr Grewal subpoenas for the production of documents for trial. Mr Singh and Mr Grewal filed an application to set aside the subpoenas as abuses of process. Also, the trial judge was dissatisfied with the compressed schedule for trial proposed by the plaintiff. The defendant was not the sole or predominant cause of the adjournment.
[38] In all of the circumstances, an order for indemnity costs should not be made.