Brendon Ewart William Kelson v David Syme & Co Limited (Acn 004 262 702)

[1998] ACTSC 87

Supreme Court of the ACT

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Interrogate

Catchwords

1. Practice and Procedure
2. › Costs
3. › Indemnity costs
4. › Basis upon which warranted
5. › Rejection of reasonable offer of settlement
6. › Maintenance of defences subsequently abandoned at trial
7. › Whether conduct sufficiently unreasonable to justify departure from party and party costs
1. Practice and Procedure
2. › Costs
3. › Apportionment of costs
4. › Whether modest allowance for loss of chance constitutes substantial failure on issue
5. › Whether failure of claim for exemplary damages significant when aggravated damages justified by same facts
1. Defamation
2. › Costs
3. › Relevance of conduct justifying aggravated damages to indemnity costs application

Quick Take

Rejection of a reasonable settlement offer and maintenance of untenable defences, while open to criticism, do not necessarily meet the threshold for indemnity costs where there remain real issues in the litigation and the defendant has made some (albeit late) offers. A plaintiff who receives a modest allowance for loss of chance has not 'failed' on that issue where the defendant conceded nothing. Failure on exemplary damages does not warrant costs apportionment where the same facts supported a successful aggravated damages claim.