FX Group Holdings Pty Ltd v Perpetual Trustee Co Ltd as trustee of the CPEC 8 Trust A (formerly the CHAMP IV Trust A) (No 4) (costs) [2025] NSWSC 1494 — Costs & Timing Of Costs Order — Barrister AI
FX Group Holdings Pty Ltd v Perpetual Trustee Co Ltd as trustee of the CPEC 8 Trust A (formerly the CHAMP IV Trust A) (No 4) (costs)
whether should defer until remaining discrete issue resolved
where cannot conceive how resolution of remaining issue will affect costs orders, no reason to defer. SANDERSON OR BULLOCK ORDERS
Quick Take
1Where a party pleads that a solicitor's negligence severed the causal connection or should reduce liability via a proportionate liability defence, and the opposing party consequently joins the solicitor, the reasonableness of joinder is assessed at the time of joinder; a Sanderson order requiring the party who raised the allegations to pay the solicitor's costs directly may be appropriate even though the professional negligence claim was never determined.
2A without-prejudice-save-as-to-costs letter that does not contain an offer but merely asserts the hopelessness of the opposing case can be relied upon in support of an indemnity costs application, but indemnity costs will not be ordered on that basis alone where the case, though ultimately unsuccessful, was not so devoid of merit that a properly advised party should have known it had no chance of success.
3An offer of compromise that requires acceptance of the offeror's construction of a contract but also offers a substantial commercial concession (here, trebling a contractual buffer amount) and the bearing of own costs constitutes a genuine offer of compromise, not an invitation to capitulate, and non-acceptance triggers indemnity costs absent exceptional circumstances.
