Shimden Pty Ltd v Park Pty Ltd (No 2) [2022] NSWSC 415

Shimden Pty Ltd v Park Pty Ltd (No 2) [2022] NSWSC 415

Rule 42.34 does not prevent a costs order in favour of the plaintiff as the proceedings could not, when commenced, have been brought in the District Court due to the inclusion of a caveat withdrawal claim under s 74MA of the Real Property Act 1900 (NSW), and the plaintiff is entitled to costs. Furthermore, defendant's unreasonable failure to accept a Calderbank offer warrants indemnity costs from the date of the offer.

Parties
Plaintiff/cross Defendant: Shimden Pty Ltd; Defendant/cross Claimant: Park Pty Ltd
Jurisdiction
Australia
Judgment Date
08 April 2022
Procedural Posture
Civil / Post Judgment (costs Determination)
Outcome
Defendant to pay plaintiff's costs of the proceedings (other than in relation to the Cross-Claim), on an ordinary basis up to and including 14 September 2021 and on an indemnity basis thereafter.
Legal Topics
Costs, Jurisdiction, Calderbank Offer, Indemnity Costs, Commencement of Proceedings
Equity Costs Jurisdiction Calderbank Offer Indemnity Costs Commencement of Proceedings

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Parties

Shimden Pty Ltd

Plaintiff/cross Defendant

Park Pty Ltd

Defendant/cross Claimant

Procedural Posture

Civil / Post Judgment (costs Determination)

Legal Issues

  1. 1 Whether costs should follow the event in light of rule 42.34 given judgment sum less than $500,000
  2. 2 Whether proceedings could have been commenced in the District Court
  3. 3 Whether indemnity costs should be awarded from 14 September 2021 due to defendant’s failure to accept a Calderbank offer

Ratio Decidendi

Rule 42.34 does not prevent a costs order in favour of the plaintiff as the proceedings could not, when commenced, have been brought in the District Court due to the inclusion of a caveat withdrawal claim under s 74MA of the Real Property Act 1900 (NSW), and the plaintiff is entitled to costs. Furthermore, defendant's unreasonable failure to accept a Calderbank offer warrants indemnity costs from the date of the offer.

Court Disposition

Defendant to pay plaintiff's costs of the proceedings (other than in relation to the Cross-Claim), on an ordinary basis up to and including 14 September 2021 and on an indemnity basis thereafter.

Orders

  • Order that the defendant pay the plaintiff's costs of the proceedings (other than in relation to the Cross-Claim)
  • Order that such costs be paid on the ordinary basis in respect of costs incurred up to and including 14 September 2021, and on an indemnity basis in respect of costs incurred thereafter