Telfer v Fairfax (No 2) [2016] NSWSC 639

Telfer v Fairfax (No 2) [2016] NSWSC 639

The plaintiff was entitled to ordinary costs for the claims on which she substantially succeeded because the second defendant, having joined as a defendant and acted as contradictor, failed in his defences to the existence and effect of the equitable charge and the secured debt. However, the 18 March 2015 offer did not support indemnity costs because, after applying UCPR r 42.16 and comparing the offer with the judgment amount, it involved no real compromise. The second defendant/cross claimant was entitled to ordinary costs for the cross claim and the plaintiff's claims for possession, vacant possession and judicial sale because those claims would have destroyed his contractual interest...

Jurisdiction
Australia
Judgment Date
18 May 2016
Procedural Posture
Costs / Determination of Reserved Costs on the Papers After Principal Judgment and Orders
Outcome
Costs ordered on the ordinary basis in favour of the plaintiff for the successful statement of claim issues, and on the ordinary basis in favour of the second defendant/cross claimant for the cross claim and the plaintiff's unsuccessful claims for orders 3 to 5; indemnity costs refused.
Legal Topics
['ordinary Costs' 'indemnity Costs' 'offer of Compromise' 'calderbank Offer' 'equitable Charge' 'specific Performance' 'costs of Claim and Cross Claim']
['civil Procedure' 'costs' 'equity'] ['ordinary Costs' 'indemnity Costs' 'offer of Compromise' 'calderbank Offer' 'equitable Charge' 'specific Performance' 'costs of Claim and Cross Claim']

Case Brief

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Procedural Posture

Costs / Determination of Reserved Costs on the Papers After Principal Judgment and Orders

Legal Issues

  1. 1 ['Whether the plaintiff was entitled to costs against the second defendant on the ordinary basis or indemnity basis by reason of her 18 March 2015 offer of compromise.' "Whether the plaintiff's offer of compromise was effective where it did not involve any real element of compromise." "Whether the second defendant/cross claimant was entitled to costs against the plaintiff/first cross defendant for the cross claim and the plaintiff's unsuccessful claims for possession, vacant possession and judicial sale." 'How costs should be apportioned where the plaintiff succeeded on most claims in the statement of claim but failed on claims that overlapped with the cross claim.']

Ratio Decidendi

The plaintiff was entitled to ordinary costs for the claims on which she substantially succeeded because the second defendant, having joined as a defendant and acted as contradictor, failed in his defences to the existence and effect of the equitable charge and the secured debt. However, the 18 March 2015 offer did not support indemnity costs because, after applying UCPR r 42.16 and comparing the offer with the judgment amount, it involved no real compromise. The second defendant/cross claimant was entitled to ordinary costs for the cross claim and the plaintiff's claims for possession, vacant possession and judicial sale because those claims would have destroyed his contractual interest...

Court Disposition

Costs ordered on the ordinary basis in favour of the plaintiff for the successful statement of claim issues, and on the ordinary basis in favour of the second defendant/cross claimant for the cross claim and the plaintiff's unsuccessful claims for orders 3 to 5; indemnity costs refused.

Orders

  • ['Order the second defendant to pay the costs of the plaintiff on the ordinary basis in respect of the claims made in the statement of claim, except for orders 3 to 5 set out in the statement of the relief claimed.' 'Order the plaintiff/first cross defendant to pay costs of the second defendant/cross claimant on the...