Warragamba Winery Pty Ltd v State of New South Wales [2010] NSWSC 1314

Warragamba Winery Pty Ltd v State of New South Wales [2010] NSWSC 1314

The first defendant's failure to serve its evidence by the ordered dates caused the appearances before Kirby J on 15 and 16 July 2009 and before Harrison J on 24 September 2009 and 19 October 2009, and any wasted work that could not still be used in the plaintiffs' cases; those costs should be paid by the first defendant. However, the plaintiffs did not establish that the mediation costs were thrown away, because the actual utility of the mediation and the effect of later evidence on settlement could not be assessed on the evidence, so those costs should be costs in the proceedings. The discovery motion was resolved by consent and its costs should also be costs in the proceedings. The...

Jurisdiction
Australia
Judgment Date
16 November 2010
Procedural Posture
Costs Application in Supreme Court of New South Wales Common Law Division Proceedings / Interlocutory Costs Ruling
Outcome
Application allowed in part.
Legal Topics
['costs of Non Compliance With Evidence Service Orders' 'costs of Mediation' 'discovery Motion Costs' 'payment of Interlocutory Costs Forthwith' 'ucpr 42.7(2)']
['civil Procedure' 'costs'] ['costs of Non Compliance With Evidence Service Orders' 'costs of Mediation' 'discovery Motion Costs' 'payment of Interlocutory Costs Forthwith' 'ucpr 42.7(2)']

Case Brief

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Procedural Posture

Costs Application in Supreme Court of New South Wales Common Law Division Proceedings / Interlocutory Costs Ruling

Legal Issues

  1. 1 ['Whether the first defendant should pay costs referable to its failure to serve evidence by the dates ordered.' 'Whether costs said to have been thrown away or occasioned by the unsuccessful mediation scheduled for 4 and 5 November 2009 should be paid by the first defendant.' 'Whether the plaintiffs should recover costs of their motion for discovery.' 'Whether any costs ordered against the first defendant should be payable forthwith under UCPR 42.7(2).' 'What costs order should be made for the present application.']

Ratio Decidendi

The first defendant's failure to serve its evidence by the ordered dates caused the appearances before Kirby J on 15 and 16 July 2009 and before Harrison J on 24 September 2009 and 19 October 2009, and any wasted work that could not still be used in the plaintiffs' cases; those costs should be paid by the first defendant. However, the plaintiffs did not establish that the mediation costs were thrown away, because the actual utility of the mediation and the effect of later evidence on settlement could not be assessed on the evidence, so those costs should be costs in the proceedings. The discovery motion was resolved by consent and its costs should also be costs in the proceedings. The...

Court Disposition

Application allowed in part.

Orders

  • ['Order the first defendant to pay the costs of the appearances before Kirby J on 15 and 16 July 2009, the costs of the appearance before me on 24 September 2009, and the costs of the appearance before me on 19 October 2009.' 'Order the costs referred to in order 1 be payable forthwith in accordance with UCPR...