Milicevic & Anor v Ferrari East Pty Limited & Ors (No 2) [2022] NSWSC 786

Milicevic & Anor v Ferrari East Pty Limited & Ors (No 2) [2022] NSWSC 786

Although the plaintiffs' leave to reopen application arose from inadvertent error and oversight, most likely by their expert and legal representatives, it did not involve special or unusual circumstances or delinquency warranting indemnity costs. The issues on which leave was granted were confined, were not addressed by the defendants' expert or in the joint expert session, one arose from an observation by the Court on the last hearing day, and no further hearing was required. The costs of the defendants' amendment application were not determined because the relevant correspondence was not provided and the defendants had not made submissions on that point.

Jurisdiction
Australia
Judgment Date
15 June 2022
Procedural Posture
Costs / On the Papers Determination of Costs Following Grant of Plaintiffs' Leave to Reopen Their Case
Outcome
Plaintiffs ordered to pay the defendants' costs of the plaintiffs' notice of motion filed on 18 March 2022 and costs thrown away on an ordinary basis; costs of the defendants' 2 February 2022 motion left to be dealt with when costs of the proceedings are determined.
Legal Topics
['costs of Application for Leave to Reopen' 'ordinary Costs' 'indemnity Costs' 'costs Thrown Away']
['civil Procedure' 'costs'] ['costs of Application for Leave to Reopen' 'ordinary Costs' 'indemnity Costs' 'costs Thrown Away']

Case Brief

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Procedural Posture

Costs / On the Papers Determination of Costs Following Grant of Plaintiffs' Leave to Reopen Their Case

Legal Issues

  1. 1 ["Whether the plaintiffs should pay the defendants' costs of the application for leave to reopen and costs thrown away on an ordinary basis or an indemnity basis." "Whether the Court should at this time revisit the reserved costs of the defendants' notice of motion of 2 February 2022."]

Ratio Decidendi

Although the plaintiffs' leave to reopen application arose from inadvertent error and oversight, most likely by their expert and legal representatives, it did not involve special or unusual circumstances or delinquency warranting indemnity costs. The issues on which leave was granted were confined, were not addressed by the defendants' expert or in the joint expert session, one arose from an observation by the Court on the last hearing day, and no further hearing was required. The costs of the defendants' amendment application were not determined because the relevant correspondence was not provided and the defendants had not made submissions on that point.

Court Disposition

Plaintiffs ordered to pay the defendants' costs of the plaintiffs' notice of motion filed on 18 March 2022 and costs thrown away on an ordinary basis; costs of the defendants' 2 February 2022 motion left to be dealt with when costs of the proceedings are determined.

Orders

  • ["The plaintiffs are to pay the defendants' costs of the plaintiffs' notice of motion filed on 18 March 2022 and the costs thrown away by reason of the orders made on 13 May 2022 on an ordinary basis, as agreed or assessed."]