Segal v Commonwealth Bank of Australia

[2016] NSWCA 90

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Costs
3. › Indemnity costs
4. › Discontinuance of proceedings without explanation
5. › Whether unreasonable conduct of proceedings warranted indemnity costs
6. › Whether history of non-compliance with court directions constituted abuse of process
7. › Civil Procedure Act 2005 (NSW), ss 56(1), 56(3), 98(1)
1. Practice and Procedure
2. › Costs
3. › Offer of compromise
4. › Calderbank offer
5. › Whether offer involved genuine element of compromise
6. › Whether offer requiring total capitulation constitutes genuine compromise
7. › Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.19
1. Practice and Procedure
2. › Costs
3. › Discontinuance
4. › Costs following discontinuance
5. › Whether court should assess merits of discontinued proceedings for costs purposes
6. › Uniform Civil Procedure Rules 2005 (NSW), r 42.19

Quick Take

An offer of compromise or Calderbank offer that requires total capitulation — discontinuance with costs on the ordinary basis — does not contain a genuine element of compromise and will not trigger indemnity costs consequences. Sustained non-compliance with court directions, without more, does not establish that proceedings are vexatious or an abuse of process warranting indemnity costs. However, failure to give advance notice of discontinuance, causing the other party to incur costs in preparation for a hearing, may warrant indemnity costs limited to those specific costs thrown away.