Moustach Pty Ltd v Eddie Takchi [2015] NSWSC 2080

Moustach Pty Ltd v Eddie Takchi [2015] NSWSC 2080

Before costs were referred for assessment, the Court had power to make an order establishing the basis of assessment under UCPR r 42.2 and Civil Procedure Act s 98, even though a costs order had already been made, because the basis of assessment had not previously been considered or determined. The third and fourth defendants bettered a valid offer of compromise and the plaintiffs had never articulated a viable claim against them, so they were substantively entitled to indemnity costs from after the offer, but their belated application meant there should be no order for the costs of the motion.

Jurisdiction
Australia
Judgment Date
24 November 2015
Procedural Posture
Costs Application in Equity Corporations List / Notice of Motion After Dismissal of Proceedings Against the Third and Fourth Defendants Seeking Assessment of Costs on the Ordinary Basis to 3 December 2014 and on the Indemnity Basis Thereafter
Outcome
Costs order made; third and fourth defendants obtained ordinary costs to 3 December 2014 and indemnity costs thereafter, with no order as to the costs of the motion.
Legal Topics
['indemnity Costs' 'offer of Compromise' 'calderbank Offer' 'costs After Conclusion of Proceedings' 'basis of Costs Assessment' 'finality of Costs Orders']
['procedure' 'costs'] ['indemnity Costs' 'offer of Compromise' 'calderbank Offer' 'costs After Conclusion of Proceedings' 'basis of Costs Assessment' 'finality of Costs Orders']

Case Brief

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Procedural Posture

Costs Application in Equity Corporations List / Notice of Motion After Dismissal of Proceedings Against the Third and Fourth Defendants Seeking Assessment of Costs on the Ordinary Basis to 3 December 2014 and on the Indemnity Basis Thereafter

Legal Issues

  1. 1 ['Whether an application for indemnity costs could be made after a costs order had already been made where indemnity costs were not sought at the time and costs had not yet been referred for assessment' 'Whether an order under (NSW) Uniform Civil Procedure Rules 2005, r 42.2 would vary an existing costs order or merely establish the basis of assessment' 'Whether the third and fourth defendants were substantively entitled to indemnity costs after the plaintiffs failed to accept an offer of compromise which the defendants bettered' 'Whether the belated nature of the application should affect the costs of the motion']

Ratio Decidendi

Before costs were referred for assessment, the Court had power to make an order establishing the basis of assessment under UCPR r 42.2 and Civil Procedure Act s 98, even though a costs order had already been made, because the basis of assessment had not previously been considered or determined. The third and fourth defendants bettered a valid offer of compromise and the plaintiffs had never articulated a viable claim against them, so they were substantively entitled to indemnity costs from after the offer, but their belated application meant there should be no order for the costs of the motion.

Court Disposition

Costs order made; third and fourth defendants obtained ordinary costs to 3 December 2014 and indemnity costs thereafter, with no order as to the costs of the motion.

Orders

  • ['The costs payable by the plaintiffs to the third and fourth defendants under the costs order made on 3 August 2015 be assessed on the ordinary basis up to and including 3 December 2014, and on the indemnity basis thereafter.' 'There be no order as to the costs of and incidental to the notice of motion filed on 12...