Kitchen v Vision Eye Institute Ltd & Anor

[2017] QCA 32

Queensland Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Costs
3. › Offers to compromise
4. › Calderbank offers
5. › Unreasonable refusal of offer
6. › Whether indemnity costs should be ordered
7. › Whether refusal of substantially more favourable offer was unreasonable
1. Practice and Procedure
2. › Costs
3. › Indemnity costs
4. › Abandonment of grounds of appeal
5. › Whether raising and abandoning hopeless grounds justifies indemnity costs
1. Practice and Procedure
2. › Costs
3. › Indemnity costs
4. › Temporal limitation on indemnity costs order
5. › Whether indemnity costs should be limited to costs incurred after expiry of Calderbank offer

Quick Take

An unsuccessful appellant's failure to accept a Calderbank offer that is substantially more favourable than the judgment below will result in indemnity costs from the date of expiry of the offer, unless the appellant can identify a reason for non-acceptance beyond the usual prospects of success in litigation. The mere fact that the offeror subsequently makes a lower offer after the hearing is irrelevant to the reasonableness of the earlier refusal. However, the raising and subsequent abandonment of hopeless grounds of appeal does not alone justify indemnity costs where the remaining grounds are not entirely without arguable merit.