Lucantonio v Kleinert & Ors (Costs) [2011] NSWSC 1642

Procedural Posture

Consequential Costs Orders / Costs Motions After Judgment for the Defendants

Legal Issues

1. 1 ["Whether the second defendant's costs should be assessed on an indemnity basis from the date of an informal settlement offer." 'Whether further costs orders should be made against Dino Lucantonio after he ceased to be a party when replaced as trustee.' 'Whether interest on costs should be ordered under (NSW) Civil Procedure Act (2005), s 101(4).' 'Whether execution of the costs order in favour of the second defendant should be stayed pending appeal.']

Ratio Decidendi

Because the plaintiff's claims against the second defendant failed on causation and the plaintiff had rejected a without prejudice save as to costs offer that would have left him substantially better off than the result at judgment, the second defendant was entitled to costs on a party-party basis to 6 March 2009 and thereafter on an indemnity basis. No further costs order was made against Dino Lucantonio because he ceased to be a party when replaced as trustee, the parties had an opportunity to address costs when the earlier order was made, and further orders would disturb expectations created by that order. Interest on costs was inappropriate as between the plaintiff and the first and...

Court Disposition

The second defendant obtained party-party costs to 6 March 2009 and indemnity costs thereafter, plus interest on costs. No further costs order was made against Dino Lucantonio. No interest order was made as between the plaintiff and the first and third defendants. The stay application was not granted on the evidence...

Orders

• ["By consent, the plaintiff pay the first defendant's costs of the proceedings on a party/party basis to 8 September 2005, and thereafter on an indemnity basis." "By consent, the plaintiff pay the third defendant's costs of the proceedings on a party/party basis to 9 May 2008, and thereafter on an indemnity basis."...