NMFM Property Pty Ltd v Citibank Ltd (No 11) [2001] FCA 480

NMFM Property Pty Ltd v Citibank Ltd (No 11) [2001] FCA 480

Indemnity costs were not warranted against NMFM because, although unsuccessful, its case was arguable and its conduct as litigant was not improper or imprudent; mere antecedent ethical or moral delinquency is not sufficient for indemnity costs; rejection of Calderbank offers was not unreasonable; costs for notices disputing facts were not separately ordered as Citibank acted reasonably in disputing most facts.

Parties
First Applicant: NMFM Property Pty Limited (formerly National Mutual Property Services (Australia) Pty Ltd); Second Applicant: National Mutual Assets Management Limited; Third Applicant: The National Mutual Life Association of Australasia Limited; Respondent/first Cross Claimant/cross Respondent to 2nd and 3rd Cross Claims: Citibank Limited (formerly Citibank Savings Limited); Second Cross Respondent/second Cross Claimant: Lance Kelly; Fourth Cross Respondent/third Cross Claimant: Dennis Jones; Fifth Cross Respondent: Tony Bahr; Sixth Cross Respondent: Alan J Blee; Eighth Cross Respondent: Norman Kirby; Ninth Cross Respondent: Paul Kennedy; Tenth Cross Respondent: Peter Kinross; Eleventh Cross Respondent: James Naughton; Fourteenth Cross Respondent: Erik James Buttars; Fifteenth Cross Respondent: Rommel Hacopian; Sixteenth Cross Respondent: Craig Byron Roberts; Seventeenth Cross Respondent: Anna Wass; Eighteenth Cross Respondent: Allan Stewart Crawford; Nineteenth Cross Respondent: Permanent Trustee Company Limited; Twentieth Cross Respondent: American Home Assurance Company; Twenty First Cross Respondent: Lawrence C Grima
Jurisdiction
Australia
Judgment Date
27 April 2001
Procedural Posture
Costs Application in Civil Proceeding / Post Trial Judgment on Costs
Outcome
Applications for indemnity costs and special costs orders dismissed. Costs on usual party and party basis ordered.
Legal Topics
Costs, Indemnity Costs, Party and Party Costs, Notices to Admit Facts, Offers of Compromise
Civil Procedure Costs Indemnity Costs Party and Party Costs Notices to Admit Facts Offers of Compromise

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Parties

NMFM Property Pty Limited (formerly National Mutual Property Services (Australia) Pty Ltd)

First Applicant

National Mutual Assets Management Limited

Second Applicant

The National Mutual Life Association of Australasia Limited

Third Applicant

Citibank Limited (formerly Citibank Savings Limited)

Respondent/first Cross Claimant/cross Respondent to 2nd and 3rd Cross Claims

Lance Kelly

Second Cross Respondent/second Cross Claimant

Dennis Jones

Fourth Cross Respondent/third Cross Claimant

Tony Bahr

Fifth Cross Respondent

Alan J Blee

Sixth Cross Respondent

Norman Kirby

Eighth Cross Respondent

Paul Kennedy

Ninth Cross Respondent

Peter Kinross

Tenth Cross Respondent

James Naughton

Eleventh Cross Respondent

Erik James Buttars

Fourteenth Cross Respondent

Rommel Hacopian

Fifteenth Cross Respondent

Craig Byron Roberts

Sixteenth Cross Respondent

Anna Wass

Seventeenth Cross Respondent

Allan Stewart Crawford

Eighteenth Cross Respondent

Permanent Trustee Company Limited

Nineteenth Cross Respondent

American Home Assurance Company

Twentieth Cross Respondent

Lawrence C Grima

Twenty First Cross Respondent

Procedural Posture

Costs Application in Civil Proceeding / Post Trial Judgment on Costs

Legal Issues

  1. 1 Whether indemnity costs should be awarded against NMFM Property Pty Ltd in favour of Citibank Limited
  2. 2 Whether costs should be ordered in relation to proof of facts disputed pursuant to notices to admit and dispute facts

Ratio Decidendi

Indemnity costs were not warranted against NMFM because, although unsuccessful, its case was arguable and its conduct as litigant was not improper or imprudent; mere antecedent ethical or moral delinquency is not sufficient for indemnity costs; rejection of Calderbank offers was not unreasonable; costs for notices disputing facts were not separately ordered as Citibank acted reasonably in disputing most facts.

Court Disposition

Applications for indemnity costs and special costs orders dismissed. Costs on usual party and party basis ordered.

Orders

  • NMFM to pay Citibank's costs on the usual party and party basis.
  • No special order for proof of facts costs arising from notices to admit/dispute facts.