Defendant unsuccessful in appeal from Associate Justice
Plaintiffs sought costs of the proceeding on an indemnity basis
Whether contractual entitlement to indemnity for ‘reasonable costs incurred’ warranted making an order for indemnity costs
Quick Take
1A contractual indemnity for 'reasonable costs incurred' correlates with standard costs ('all costs reasonably incurred and of reasonable amount') rather than indemnity costs, because the burden of proof and the presumption regarding doubtful costs differ materially between the two bases.
2Mere failure on all grounds of an appeal is, without more, insufficient to justify departing from the usual order of costs on a standard basis.
3Following Chen and Xu v Kevin McNamara & Son Pty Ltd (No 2) [2012] VSCA 229, a contractual costs provision will only inform the exercise of discretion to award indemnity costs where its terms plainly and unambiguously provide for costs on a special basis.
