Ng v Chong [2005] NSWSC 385

Ng v Chong [2005] NSWSC 385

Because the defendant's cross-claim against the fourth cross defendant was a claim for damages only, and compensatory loss was not established, the defendant's recovery of nominal damages of $10 meant the event was in favour of the cross defendant and costs should follow that event. The plaintiffs were entitled to ordinary costs against the defendant, subject to paying the defendant's costs of the motion for pleadings, but neither the plaintiffs' nor the cross defendant's Calderbank offer made non-acceptance sufficiently unreasonable to justify indemnity costs.

Jurisdiction
Australia
Judgment Date
21 April 2005
Procedural Posture
Costs Judgment in Equity Division Proceedings for Specific Performance of a Contract for the Sale of Land and Cross Claims for Damages / Costs After Judgment
Outcome
Applications for indemnity costs refused. Defendant's application for a Bullock type order refused. Costs ordered as set out by the Court.
Legal Topics
['costs Follow the Event' 'nominal Damages' 'indemnity Costs' 'calderbank Letters' 'bullock Type Order' 'specific Performance' 'cross Claims']
['procedure' 'costs' 'equity' 'contract' 'negligence'] ['costs Follow the Event' 'nominal Damages' 'indemnity Costs' 'calderbank Letters' 'bullock Type Order' 'specific Performance' 'cross Claims']

Case Brief

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Procedural Posture

Costs Judgment in Equity Division Proceedings for Specific Performance of a Contract for the Sale of Land and Cross Claims for Damages / Costs After Judgment

Legal Issues

  1. 1 ['Whether the plaintiffs should have their costs against the defendant, including indemnity costs from 28 May 2004.' 'Whether the plaintiffs or the defendant should have the costs of the notice of motion of 25 September 2002 for pleadings.' 'Whether the fourth cross defendant should pay the defendant any costs the defendant was ordered to pay to the plaintiffs by analogy with a Bullock order.' 'Whether the cross defendant should have costs against the defendant where the defendant obtained only nominal damages for breach of contract and failed to establish compensatory loss.' 'Whether Calderbank offers justified indemnity costs for the plaintiffs or the cross defendant.']

Ratio Decidendi

Because the defendant's cross-claim against the fourth cross defendant was a claim for damages only, and compensatory loss was not established, the defendant's recovery of nominal damages of $10 meant the event was in favour of the cross defendant and costs should follow that event. The plaintiffs were entitled to ordinary costs against the defendant, subject to paying the defendant's costs of the motion for pleadings, but neither the plaintiffs' nor the cross defendant's Calderbank offer made non-acceptance sufficiently unreasonable to justify indemnity costs.

Court Disposition

Applications for indemnity costs refused. Defendant's application for a Bullock type order refused. Costs ordered as set out by the Court.

Orders

  • ["Order that the plaintiffs pay the defendant's costs of the notice of motion of 25 September 2002." "Otherwise order that the defendant pay the plaintiff's costs of the proceedings." "Order that the defendant pay the fourth cross defendant's costs of the proceedings." 'Direct that the exhibits be returned unless an...