Coffey v Murrumbidgee Local Health District formerly known as Greater Murray Area Health Service [2020] NSWSC 80 (available on Caselaw) saw a defendant’s application for an indemnity costs order resisted by the plaintiff.
The substantial burden of the plaintiff’s submissions was that the offer of compromise was made too soon, in the sense that the evidence was not then complete on either side, so that it was in effect unreasonable for the defendant to expect or require the plaintiff on pain of a possible indemnity costs order to make a fundamental decision about the strength of her case with less than full information (see [19]).
The order for costs was made only on an ordinary basis, with the court stating at [22]:
In my opinion it was not unreasonable for the plaintiff, at the time that the offer was made, not to accept it. It would not in my view have been possible or reasonable to expect that the plaintiff could have given any consideration to the defendant’s offer at the time it was made that did not involve an unacceptable degree of speculation.