Norcross Pictorial Calendars Pty Ltd v Central Coast Council (No 2) [2020] NSWSC 1409

Norcross Pictorial Calendars Pty Ltd v Central Coast Council (No 2) [2020] NSWSC 1409

The plaintiffs were substantially successful, but they were not entitled to costs of preparing unused evidence or a non-compliant court book. The contractual indemnity in cl 7.2 of the JVA justified indemnity costs for the asbestos and acid sulphate soil claims. The earlier pleading delay was sufficiently addressed by the previous costs order on the strike out application and did not deprive PTL of pre-judgment interest. Interest on costs should be paid using the allowed-percentage method proposed by the plaintiffs.

Jurisdiction
Australia
Judgment Date
13 October 2020
Procedural Posture
Consequential Orders in Equity Technology and Construction List / On the Papers After Judgment Delivered on 4 September 2020
Outcome
First plaintiff's claim dismissed; judgment entered for the second plaintiff; cross-claim dismissed; costs and interest ordered against the defendant/cross-claimant subject to exclusions.
Legal Topics
['costs of Evidence Not Served or Tendered' 'indemnity Costs' 'contractual Indemnity' 'pre Judgment Interest' 'interest on Costs']
['civil Procedure' 'costs' 'contract'] ['costs of Evidence Not Served or Tendered' 'indemnity Costs' 'contractual Indemnity' 'pre Judgment Interest' 'interest on Costs']

Case Brief

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Procedural Posture

Consequential Orders in Equity Technology and Construction List / On the Papers After Judgment Delivered on 4 September 2020

Legal Issues

  1. 1 ['Whether the plaintiffs should recover costs of preparing expert reports and an affidavit that were not served or tendered at the hearing.' 'Whether costs incurred in respect of the asbestos contamination and acid sulphate soil claims should be paid on an indemnity basis under cl 7.2 of the JVA.' "Whether delay following the strike out of the plaintiffs' earlier Statement of Claim should disentitle PTL to pre-judgment interest for part of the period." 'How interest on costs and disbursements should be calculated.']

Ratio Decidendi

The plaintiffs were substantially successful, but they were not entitled to costs of preparing unused evidence or a non-compliant court book. The contractual indemnity in cl 7.2 of the JVA justified indemnity costs for the asbestos and acid sulphate soil claims. The earlier pleading delay was sufficiently addressed by the previous costs order on the strike out application and did not deprive PTL of pre-judgment interest. Interest on costs should be paid using the allowed-percentage method proposed by the plaintiffs.

Court Disposition

First plaintiff's claim dismissed; judgment entered for the second plaintiff; cross-claim dismissed; costs and interest ordered against the defendant/cross-claimant subject to exclusions.

Orders

  • ['The claim made by the first plaintiff is dismissed.' 'The defendant is to pay the second plaintiff $913,439.' 'Pursuant to s 100 of the Civil Procedure Act 2005 (NSW), the defendant is to pay the second plaintiff pre-judgement interest at the rate prescribed by r 6.12(8) of the Uniform Civil Procedure Rules 2005...