Vanessa Crump & Ors v Equine Nutrition Systems Pty Ltd t/as Horsepower & Anor [2004] NSWSC 1080

Vanessa Crump & Ors v Equine Nutrition Systems Pty Ltd t/as Horsepower & Anor [2004] NSWSC 1080

The plaintiffs' delay in seeking vacation of the trial date until the eve or first day of trial was totally unreasonable, was inconsistent with correspondence indicating readiness, and caused avoidable costs to the defendants; that conduct amounted to relevant delinquency justifying indemnity costs for costs thrown away. However, payment forthwith was not justified because the trial had been relisted for 2 May 2005, the wasted costs would be better assessed after trial, and the unreasonable conduct had already been addressed by the indemnity costs order.

Jurisdiction
Australia
Judgment Date
16 November 2004
Procedural Posture
Application for Costs Thrown Away by Reason of Vacation of a Trial Date / After Trial Date Was Vacated and Before Relisted Trial
Outcome
Defendants' application for indemnity costs granted; defendants' application for costs to be payable forthwith refused.
Legal Topics
['indemnity Costs' 'costs Thrown Away' 'vacation of Trial Date' 'adjournment' 'costs Payable Forthwith']
['costs' 'civil Procedure'] ['indemnity Costs' 'costs Thrown Away' 'vacation of Trial Date' 'adjournment' 'costs Payable Forthwith']

Case Brief

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Procedural Posture

Application for Costs Thrown Away by Reason of Vacation of a Trial Date / After Trial Date Was Vacated and Before Relisted Trial

Legal Issues

  1. 1 ["Whether the plaintiffs' conduct in seeking vacation of the trial date justified an order that the defendants' costs thrown away be paid on an indemnity basis." 'Whether the court should order that the costs thrown away be payable forthwith rather than at the conclusion of the proceedings.']

Ratio Decidendi

The plaintiffs' delay in seeking vacation of the trial date until the eve or first day of trial was totally unreasonable, was inconsistent with correspondence indicating readiness, and caused avoidable costs to the defendants; that conduct amounted to relevant delinquency justifying indemnity costs for costs thrown away. However, payment forthwith was not justified because the trial had been relisted for 2 May 2005, the wasted costs would be better assessed after trial, and the unreasonable conduct had already been addressed by the indemnity costs order.

Court Disposition

Defendants' application for indemnity costs granted; defendants' application for costs to be payable forthwith refused.

Orders

  • ["The plaintiffs are to pay the defendants' costs thrown away by reason of the vacation of the trial date on an indemnity basis." "The defendants' application for an order that those costs be payable forthwith is refused." "The plaintiffs are to pay the defendants' costs of the hearings on 1, 11 and 16 November 2004...