Weng v NSW Demo & Exca Services Pty Ltd (No 2) [2024] NSWDC 102

Weng v NSW Demo & Exca Services Pty Ltd (No 2) [2024] NSWDC 102

Indemnity costs were warranted because the defendant pursued a hopeless and trivial application to set aside default judgment based on typographical errors, advanced and then resiled from a proposed defence that disclosed no bona fide defence to liability, and caused unnecessary additional costs through capricious and interlinked conduct including the abandoned challenge to the first plaintiff's English language ability. That conduct justified an indemnity costs order for all costs of the Notice of Motion and the costs application from 14 November 2023.

Jurisdiction
Australia
Judgment Date
27 March 2024
Procedural Posture
Civil Costs Application / On the Papers Determination of Costs After Dismissal of the Defendant's Notice of Motion Filed on 14 November 2023 to Set Aside Default Judgment
Outcome
The plaintiffs' application for indemnity costs was granted by variation of order (2) of the orders made on 4 March 2024.
Legal Topics
['indemnity Costs' 'default Judgment' 'setting Aside Judgment' 'irregularity' 'abuse of Process' 'overriding Purpose']
['civil Procedure' 'costs'] ['indemnity Costs' 'default Judgment' 'setting Aside Judgment' 'irregularity' 'abuse of Process' 'overriding Purpose']

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Procedural Posture

Civil Costs Application / On the Papers Determination of Costs After Dismissal of the Defendant's Notice of Motion Filed on 14 November 2023 to Set Aside Default Judgment

Legal Issues

  1. 1 ["Whether the plaintiffs should receive indemnity costs for the defendant's Notice of Motion filed on 14 November 2023 and the conduct of that motion." "Whether the defendant's reliance on alleged typographical errors and UCPR rr 36.15 and 36.16 justified only ordinary costs or warranted indemnity costs." "Whether the defendant's proposed defence and conduct in relation to cross-examination and English language ability were hopeless, contumelious or time-wasting."]

Ratio Decidendi

Indemnity costs were warranted because the defendant pursued a hopeless and trivial application to set aside default judgment based on typographical errors, advanced and then resiled from a proposed defence that disclosed no bona fide defence to liability, and caused unnecessary additional costs through capricious and interlinked conduct including the abandoned challenge to the first plaintiff's English language ability. That conduct justified an indemnity costs order for all costs of the Notice of Motion and the costs application from 14 November 2023.

Court Disposition

The plaintiffs' application for indemnity costs was granted by variation of order (2) of the orders made on 4 March 2024.

Orders

  • ["By way of variation of order (2) of the orders of 4 March 2024, the defendant is to pay the plaintiffs' costs of the Notice of Motion filed on 14 November 2023 and all aspects of the conduct of that Notice of Motion, including but not limited to this application for indemnity costs, on the indemnity basis."]