Varcity Solutions Pty Ltd v Gulliver; Varcity Solutions Pty Ltd v Jagbo Pty Ltd (No 2) [2021] NSWSC 184

Varcity Solutions Pty Ltd v Gulliver; Varcity Solutions Pty Ltd v Jagbo Pty Ltd (No 2) [2021] NSWSC 184

The plaintiffs failed to show any positive ground or good reason to depart from the ordinary effect of UCPR r 42.19 after discontinuing the debt proceedings against Ms Gulliver. Their claims against her were commenced and maintained on a very insubstantial and speculative evidentiary foundation, and her 19 December 2019 Calderbank offer to bear her own costs in exchange for withdrawal or dismissal of the claims was, in the particular circumstances, a genuine and reasonable compromise. The plaintiffs' non-acceptance unreasonably caused Ms Gulliver to incur further costs, justifying indemnity costs from 20 December 2019.

Jurisdiction
Australia
Judgment Date
05 March 2021
Procedural Posture
Costs Determination in Equity Real Property List Proceedings / On the Papers Following Primary Judgment and Discontinuance Against Jennifer Adriana Gulliver
Outcome
Plaintiffs ordered to pay Ms Gulliver's costs in both proceedings on the ordinary basis up to 19 December 2019 and on the indemnity basis from 20 December 2019.
Legal Topics
['indemnity Costs' 'calderbank Offer' 'offer of Compromise' 'discontinuance' 'caveat Proceedings' 'debt Proceedings']
['costs' 'civil Procedure' 'equity' 'real Property'] ['indemnity Costs' 'calderbank Offer' 'offer of Compromise' 'discontinuance' 'caveat Proceedings' 'debt Proceedings']

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Procedural Posture

Costs Determination in Equity Real Property List Proceedings / On the Papers Following Primary Judgment and Discontinuance Against Jennifer Adriana Gulliver

Legal Issues

  1. 1 ["Whether the plaintiffs should pay Ms Gulliver's costs of the caveat proceedings on the ordinary basis or indemnity basis." 'Whether, following discontinuance of the debt proceedings against Ms Gulliver, the plaintiffs should pay her costs or there should be no order as to costs.' "Whether Ms Gulliver's 19 December 2019 Calderbank offer was a genuine and reasonable compromise such that non-acceptance justified indemnity costs from 20 December 2019."]

Ratio Decidendi

The plaintiffs failed to show any positive ground or good reason to depart from the ordinary effect of UCPR r 42.19 after discontinuing the debt proceedings against Ms Gulliver. Their claims against her were commenced and maintained on a very insubstantial and speculative evidentiary foundation, and her 19 December 2019 Calderbank offer to bear her own costs in exchange for withdrawal or dismissal of the claims was, in the particular circumstances, a genuine and reasonable compromise. The plaintiffs' non-acceptance unreasonably caused Ms Gulliver to incur further costs, justifying indemnity costs from 20 December 2019.

Court Disposition

Plaintiffs ordered to pay Ms Gulliver's costs in both proceedings on the ordinary basis up to 19 December 2019 and on the indemnity basis from 20 December 2019.

Orders

  • ["In the debt proceedings, order the plaintiffs to pay the third defendant's costs on the ordinary basis up to 19 December 2019." "In the debt proceedings, order the plaintiffs to pay the third defendant's costs on the indemnity basis from 20 December 2019." "In the caveat proceedings, order the plaintiffs to pay...