CINEMA CENTER SERVICES PTY LTD V EASTAWAY AIR CONDITIONING PTY LTD  ACTSC 17
Supreme Court of ACT – 15 February 2000
Cinema sued Eastaway and recovered damages of $285,859.26 against Eastaway. Cinema applied for an indemnity costs order against Eastaway. On 21 August 1998, Cinema had written to Eastaway offering to accept $280,000.00 plus costs in settlement of the proceeding. Eastaway did not respond to the offer.
The proceeding was listed for hearing on 24 August 1998 but by consent on 31 July 1998 was adjourned to 23 November 1998. On 31 July 1998, Cinema was ordered to provide particulars of its damages and the parties were also ordered to make discovery. Discovery was apparently not completed by 8 September 1998.
The trial commenced on 23 November 1998 and a judgment was handed down on 17 December 1999. On 8 March 1999, after the hearing on liability, Cinema wrote to Eastaway offering to accept $220,000.00 plus costs in full settlement of the proceeding. However Cinema expressly stated that if the judgment in its favour exceeded $280,000.00 it would rely on its letter of 21 August 1998.
Cinema claimed that it should be awarded indemnity costs from 21 August 1998 or 8 March 1999.
Should the Court order that Eastaway pay indemnity costs and if so from when?