“I want indemnity costs for the whole thing because your claim was so bad!”

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In a case we have previously discussed (Cao v Zhu [2020] NSWSC 321) P enjoyed complete success over D.

P made a settlement offer that was rejected. (Interestingly) The parties agreed that P should have its costs on an indemnity basis from the date of that offer: [2]

The P said (i) the D ought to have known its defences were hopeless and untenable, (ii) that a certain defence and cross-claim that led to a transfer to a different Court was disingenuous, and (iii) that the D knew the defences he was advancing were untrue: [17]

Further, the P said the D’s defence of the claim was an abuse of process designed to generate delay: [18]

The Court did not find the D lied: [20]

The Court considered it was easy to say a claim was doomed to fail in hindsight when in fact – as was the case in this decision – the outcome depended on disputed evidence being accepted, which it might not have been: [22]

Among other things: nor was the suggestion of an abuse of process accepted [23] nor was the D warned about potential indemnity costs [26]

The P got his costs on the ordinary basis up to the date of the offer, and indemnity basis from that time: [4], [28]