Gray v O'Donnell (No 2) [2009] NSWSC 1392

Gray v O'Donnell (No 2) [2009] NSWSC 1392

The second defendant's participation in the Supreme Court appeal was unnecessary because she admitted the loan and debt, could not have been prejudiced by the only available appellate orders, and had no position to protect; her costs application was therefore rejected. The plaintiffs were not entitled to broad indemnity costs because such an order would be disproportionate, the mortgage security had lapsed and an indemnity costs order would not enforce the contract. The offers made after Local Court judgment justified indemnity costs only for limited hearing and judgment dates, since the substantive preparation and submissions had already occurred and the offers were otherwise close to...

Jurisdiction
Australia
Judgment Date
16 December 2009
Procedural Posture
Costs; Appeal From Local Court / Application for Special or Additional Costs Orders After Judgment on the Substantive Appeal
Outcome
Special costs orders made; second defendant's application for her costs against the first defendant rejected; proceedings dismissed.
Legal Topics
['indemnity Costs' 'solicitor/client Costs' 'calderbank Offers' 'offer of Compromise' 'proportionality of Costs' 'sanderson Orders' 'appeal From Local Court']
['civil Procedure' 'costs'] ['indemnity Costs' 'solicitor/client Costs' 'calderbank Offers' 'offer of Compromise' 'proportionality of Costs' 'sanderson Orders' 'appeal From Local Court']

Case Brief

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Procedural Posture

Costs; Appeal From Local Court / Application for Special or Additional Costs Orders After Judgment on the Substantive Appeal

Legal Issues

  1. 1 ['Whether the plaintiffs should receive indemnity costs after succeeding on the appeal on a ground not initially raised.' 'Whether the second defendant should receive an order requiring the first defendant to pay her costs of the Supreme Court proceedings.' 'Whether the mortgage or loan terms justified solicitor/client or indemnity costs.' 'Whether offers of compromise and Calderbank offers justified indemnity costs.' 'How proportionality affected the costs orders sought.']

Ratio Decidendi

The second defendant's participation in the Supreme Court appeal was unnecessary because she admitted the loan and debt, could not have been prejudiced by the only available appellate orders, and had no position to protect; her costs application was therefore rejected. The plaintiffs were not entitled to broad indemnity costs because such an order would be disproportionate, the mortgage security had lapsed and an indemnity costs order would not enforce the contract. The offers made after Local Court judgment justified indemnity costs only for limited hearing and judgment dates, since the substantive preparation and submissions had already occurred and the offers were otherwise close to...

Court Disposition

Special costs orders made; second defendant's application for her costs against the first defendant rejected; proceedings dismissed.

Orders

  • ["The first defendant pay so much of the plaintiffs' costs of the proceedings on 27 February 2009, 8 April 2009 and 31 July 2009 that is the difference between costs on an indemnity basis, as agreed or assessed, and that which is payable under the order issued on 8 April 2009." "The second defendant pay half of the...