Zoobury Pty Ltd v Cariste Pty Ltd (No 2) [2022] NSWSC 1018

Zoobury Pty Ltd v Cariste Pty Ltd (No 2) [2022] NSWSC 1018

Zoobury was the successful party and there was no sufficient basis to depart from the usual rule that costs follow the event. Cariste's November 2020 offer did not justify a different order because it did not expressly provide full recovery of Zoobury's outstanding income, provided for no order as to costs contrary to UCPR r 20.26(2)(c), and sought a release and other relief beyond the scope of orders available in the proceedings. The Court confined its costs assessment to the claims and relief in the proceedings. Zoobury's indemnity costs application was refused because the Court could not confidently infer, without trying factual issues, that Cariste's abandoned misrepresentation and...

Jurisdiction
Australia
Judgment Date
28 July 2022
Procedural Posture
Commercial List Proceedings; Costs Determination / On the Papers After Consent Orders Disposed of Substantive Aspects of the Proceedings
Outcome
Cariste's argument for a costs order against Zoobury was rejected, Zoobury's application for indemnity costs was rejected, and Zoobury was awarded its costs on the ordinary basis.
Legal Topics
['costs Follow the Event' 'offer of Compromise' 'indemnity Costs' 'abandoned Cross Claim' 'commercial List Proceedings' 'construction of Contract']
['civil Procedure' 'costs' 'commercial Law' 'contract Law'] ['costs Follow the Event' 'offer of Compromise' 'indemnity Costs' 'abandoned Cross Claim' 'commercial List Proceedings' 'construction of Contract']

Case Brief

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Procedural Posture

Commercial List Proceedings; Costs Determination / On the Papers After Consent Orders Disposed of Substantive Aspects of the Proceedings

Legal Issues

  1. 1 ["Whether Zoobury's refusal to accept Cariste's November 2020 offer displaced the general rule that costs follow the event." 'Whether the offer of compromise was effective or otherwise justified a costs order against Zoobury despite its success in the proceedings.' "Whether Zoobury should receive indemnity costs for costs connected with Cariste's cross-claim, defence, adjournment of the trial and amended pleadings." 'What costs order should be made after Cariste abandoned the remainder of its cross-claim and Zoobury obtained declaratory relief.']

Ratio Decidendi

Zoobury was the successful party and there was no sufficient basis to depart from the usual rule that costs follow the event. Cariste's November 2020 offer did not justify a different order because it did not expressly provide full recovery of Zoobury's outstanding income, provided for no order as to costs contrary to UCPR r 20.26(2)(c), and sought a release and other relief beyond the scope of orders available in the proceedings. The Court confined its costs assessment to the claims and relief in the proceedings. Zoobury's indemnity costs application was refused because the Court could not confidently infer, without trying factual issues, that Cariste's abandoned misrepresentation and...

Court Disposition

Cariste's argument for a costs order against Zoobury was rejected, Zoobury's application for indemnity costs was rejected, and Zoobury was awarded its costs on the ordinary basis.

Orders

  • ["Order that the defendant pay the first plaintiff's costs of the proceedings (including the cross-claim) on the ordinary basis."]