Short v Crawley (No. 40) [2008] NSWSC 1302

Short v Crawley (No. 40) [2008] NSWSC 1302

Plaintiffs were substantially successful, but not on all issues; many issues were not severable. Defendants also achieved a measure of success, particularly on high-value issues. Indemnity costs are inappropriate as the defendants' conduct, while including dishonesty on some matters, did not meet the threshold for such an order. The appropriate order is that the first to sixth defendants pay two-thirds of the plaintiffs' costs on the ordinary basis, excluding costs relating to certain expert reports and specific issues. Costs orders were made separately for later-joined defendants, reflecting their limited and distinct involvement.

Parties
Plaintiffs: Roslyn Short as executrix of the estate of the Late Warwick Gordon Short & Anor; Defendants: Christopher Crawley & 9 Ors
Jurisdiction
Australia
Judgment Date
12 December 2008
Procedural Posture
Equity Proceedings / Post Trial Costs Determination
Outcome
Costs orders made per para 83; no indemnity costs.
Legal Topics
Costs, Multiple Issues, Indemnity Costs, Oppression, Valuation, Interlocutory Applications
Procedure Equity Costs Multiple Issues Indemnity Costs Oppression Valuation Interlocutory Applications

Case Brief

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Parties

Roslyn Short as executrix of the estate of the Late Warwick Gordon Short & Anor

Plaintiffs

Christopher Crawley & 9 Ors

Defendants

Procedural Posture

Equity Proceedings / Post Trial Costs Determination

Legal Issues

  1. 1 Whether defendants should pay plaintiffs' costs on an indemnity basis or ordinary basis
  2. 2 How to apportion costs given partial successes and failures by parties on multiple issues
  3. 3 Costs treatment for separately represented defendants joined late

Ratio Decidendi

Plaintiffs were substantially successful, but not on all issues; many issues were not severable. Defendants also achieved a measure of success, particularly on high-value issues. Indemnity costs are inappropriate as the defendants' conduct, while including dishonesty on some matters, did not meet the threshold for such an order. The appropriate order is that the first to sixth defendants pay two-thirds of the plaintiffs' costs on the ordinary basis, excluding costs relating to certain expert reports and specific issues. Costs orders were made separately for later-joined defendants, reflecting their limited and distinct involvement.

Court Disposition

Costs orders made per para 83; no indemnity costs.

Orders

  • All reserved costs, except those reserved on 28 March 2008 concerning the defendants' notice of motion of 22 February 2008, be costs in the proceedings.
  • First to sixth defendants to pay plaintiffs' costs of and incidental to the valuation hearing, excluding costs for Ms Cartwright's audit reports.