Challenger Group Holdings Ltd v Concept Equity Pty Ltd (No 2) [2008] NSWSC 1002

Challenger Group Holdings Ltd v Concept Equity Pty Ltd (No 2) [2008] NSWSC 1002

The bank guarantees were to remain in place because, consistently with Penrith Whitewater Stadium, a successful appeal could reverse the first instance costs position and leave a continuing possible call on the guarantees for costs at first instance. The defendant/cross-claimant was not entitled to costs of the Max report because it was inadmissible and not relied on at trial, and the plaintiff/cross-defendant's costs caused by service of that report should be paid by the defendant/cross-claimant and set off. Interest on costs was refused because the defendant/cross-claimant had a litigation funding arrangement and there was insufficient evidence of what money was paid when or of a very...

Jurisdiction
Australia
Judgment Date
24 September 2008
Procedural Posture
Equity Division Civil Proceedings Involving a Claim and Cross Claim / Post Judgment Determination of Costs, Interest on Costs and Retention of Bank Guarantees After Judgment at First Instance
Outcome
Bank guarantees given as security for costs at the trial to remain in force; costs orders made concerning the Max report; interest on costs refused.
Legal Topics
['interest on Costs' 'costs of Expert Evidence' 'retention of Bank Guarantees as Security for Costs Pending Possible Appeal']
['civil Procedure' 'costs' 'security for Costs'] ['interest on Costs' 'costs of Expert Evidence' 'retention of Bank Guarantees as Security for Costs Pending Possible Appeal']

Case Brief

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Procedural Posture

Equity Division Civil Proceedings Involving a Claim and Cross Claim / Post Judgment Determination of Costs, Interest on Costs and Retention of Bank Guarantees After Judgment at First Instance

Legal Issues

  1. 1 ["Whether bank guarantees lodged as security for the plaintiff/cross-defendant's costs should be released after judgment at first instance where an appeal was forecast." 'Whether the successful defendant/cross-claimant should recover costs of and incidental to the Max expert report where the report was not relied on at trial and was considered inadmissible.' "Whether the defendant/cross-claimant should pay the plaintiff/cross-defendant's costs caused by service of the Max report." 'Whether interest on costs should be ordered under s 101(4) of the Civil Procedure Act 2005.']

Ratio Decidendi

The bank guarantees were to remain in place because, consistently with Penrith Whitewater Stadium, a successful appeal could reverse the first instance costs position and leave a continuing possible call on the guarantees for costs at first instance. The defendant/cross-claimant was not entitled to costs of the Max report because it was inadmissible and not relied on at trial, and the plaintiff/cross-defendant's costs caused by service of that report should be paid by the defendant/cross-claimant and set off. Interest on costs was refused because the defendant/cross-claimant had a litigation funding arrangement and there was insufficient evidence of what money was paid when or of a very...

Court Disposition

Bank guarantees given as security for costs at the trial to remain in force; costs orders made concerning the Max report; interest on costs refused.

Orders

  • ['The bank guarantees should remain in place.' 'If no appeal is lodged within 35 days of the date of publication of these reasons, the guarantees should be released.' 'If an appeal is lodged, the guarantees are to be held pending further order of the court.' "The costs of the expert report of Max of 14 August 2007...