Marshall v Fleming (No 2) [2017] NSWSC 1679

Marshall v Fleming (No 2) [2017] NSWSC 1679

An order for indemnity costs against the Marshalls from 1 May 2017 is appropriate because, following service of Mr Bellacosa's expert report, the Marshalls' case was hopeless and should have been recognised as such by competent legal practitioners. Until that date, their conduct did not warrant indemnity costs. The three offers made by Kreindlers did not constitute genuine Calderbank offers with real elements of compromise and it was not unreasonable for the Marshalls to reject them; thus, no further indemnity costs are warranted on that basis. The Marshalls are not entitled to costs of the Harrison J motions, as their own conduct impeded a just, quick, and cheap resolution and the...

Parties
First Plaintiff: Margaret Lesley Marshall; Second Plaintiff: Kim Neil Marshall; First Defendant: Francis G Fleming; Second Defendant: Marc S Moller; Third Defendant: Steven R Pounian; Fourth Defendant: James P Kreindler; Fifth Defendant: David C Cook; Sixth Defendant: David Beekman; Seventh Defendant: Bianca I Rodriguez; Eighth Defendant: Noah H Kushlefsky; Ninth Defendant: Robert J Spragg; Tenth Defendant: Brian J Alexander; Eleventh Defendant: Justin T Green
Jurisdiction
Australia
Judgment Date
05 December 2017
Procedural Posture
Costs Judgment / Post Trial—rulings on Costs Applications Post Judgment
Outcome
Orders made varying and clarifying existing cost orders; applications otherwise dismissed.
Legal Topics
Costs, Indemnity Costs, Calderbank Offers, Foreign Law, Amending Costs Orders
Civil Procedure Costs Indemnity Costs Calderbank Offers Foreign Law Amending Costs Orders

Case Brief

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Parties

Margaret Lesley Marshall

First Plaintiff

Kim Neil Marshall

Second Plaintiff

Francis G Fleming

First Defendant

Marc S Moller

Second Defendant

Steven R Pounian

Third Defendant

James P Kreindler

Fourth Defendant

David C Cook

Fifth Defendant

David Beekman

Sixth Defendant

Bianca I Rodriguez

Seventh Defendant

Noah H Kushlefsky

Eighth Defendant

Robert J Spragg

Ninth Defendant

Brian J Alexander

Tenth Defendant

Justin T Green

Eleventh Defendant

Procedural Posture

Costs Judgment / Post Trial—rulings on Costs Applications Post Judgment

Legal Issues

  1. 1 Whether indemnity costs should be ordered against the plaintiffs from a specified date
  2. 2 Whether any of the offers made by the defendants were Calderbank offers and justify indemnity costs
  3. 3 Whether the costs of certain motions before Harrison J in 2013 should be awarded to the plaintiffs

Ratio Decidendi

An order for indemnity costs against the Marshalls from 1 May 2017 is appropriate because, following service of Mr Bellacosa's expert report, the Marshalls' case was hopeless and should have been recognised as such by competent legal practitioners. Until that date, their conduct did not warrant indemnity costs. The three offers made by Kreindlers did not constitute genuine Calderbank offers with real elements of compromise and it was not unreasonable for the Marshalls to reject them; thus, no further indemnity costs are warranted on that basis. The Marshalls are not entitled to costs of the Harrison J motions, as their own conduct impeded a just, quick, and cheap resolution and the...

Court Disposition

Orders made varying and clarifying existing cost orders; applications otherwise dismissed.

Orders

  • The Marshalls pay Kreindlers' costs of the trial on the ordinary basis until 30 April 2017.
  • The Marshalls pay Kreindlers' costs of the trial on an indemnity basis from 1 May 2017.