Tomasetti v Brailey [2012] NSWSC 120

Tomasetti v Brailey [2012] NSWSC 120

Interest on costs was ordered because the proceedings were complex and commercial, it was highly likely that the defendants had paid substantial costs and disbursements, and no countervailing discretionary factor justified refusing compensation for being out of pocket. Time to seek apportionment was extended because the matter was already before the Court and no prejudice was shown. Apportionment was refused because the plaintiffs' claims involved significant commonality of evidence and issues, including the evidence of Mr Tomasetti, the conduct of Mr Brailey, partnership issues, expert evidence and taxation gross-up issues, so there was insufficient reason to depart from joint and...

Jurisdiction
Australia
Judgment Date
24 February 2012
Procedural Posture
Costs Application Following Judgment for the Defendants in Professional Advice Proceedings / Post Judgment Applications for Interest on Costs, Extension of Time and Apportionment of Costs
Outcome
Defendants' application for interest on costs granted; plaintiffs granted extension of time but refused apportionment; costs ordered according to the outcome of the costs applications.
Legal Topics
['interest on Costs' 'apportionment of Costs Between Unsuccessful Plaintiffs' 'joint and Several Liability for Costs' 'extension of Time' 'indemnity Costs Application Not Pressed']
['civil Procedure' 'costs'] ['interest on Costs' 'apportionment of Costs Between Unsuccessful Plaintiffs' 'joint and Several Liability for Costs' 'extension of Time' 'indemnity Costs Application Not Pressed']

Case Brief

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Procedural Posture

Costs Application Following Judgment for the Defendants in Professional Advice Proceedings / Post Judgment Applications for Interest on Costs, Extension of Time and Apportionment of Costs

Legal Issues

  1. 1 ["Whether the plaintiffs should pay interest on the defendants' costs pursuant to s 101(4) of the Civil Procedure Act 2005." 'Whether time should be extended for the plaintiffs to apply for apportionment of costs.' "Whether the plaintiffs' liability for the defendants' costs should be apportioned as 70 per cent to the first plaintiff, 15 per cent to the second plaintiff and 15 per cent to the third plaintiff, rather than joint and several." "How costs of the costs applications should be ordered, including the defendants' indemnity costs application that was not pressed."]

Ratio Decidendi

Interest on costs was ordered because the proceedings were complex and commercial, it was highly likely that the defendants had paid substantial costs and disbursements, and no countervailing discretionary factor justified refusing compensation for being out of pocket. Time to seek apportionment was extended because the matter was already before the Court and no prejudice was shown. Apportionment was refused because the plaintiffs' claims involved significant commonality of evidence and issues, including the evidence of Mr Tomasetti, the conduct of Mr Brailey, partnership issues, expert evidence and taxation gross-up issues, so there was insufficient reason to depart from joint and...

Court Disposition

Defendants' application for interest on costs granted; plaintiffs granted extension of time but refused apportionment; costs ordered according to the outcome of the costs applications.

Orders

  • ["The plaintiffs are to pay interest on the defendants' costs pursuant to s 101(4) Civil Procedure Act 2005." 'Time extended for the plaintiffs to apply for an order as to the apportionment as to costs payable to the defendants.' "The plaintiffs' application for apportionment as to costs payable to the defendants is...