Hurford Hardwood Kempsey Pty Ltd v Kempsey Timbers (Sawmilling) Pty Ltd (No 2) [2019] NSWSC 1248

Hurford Hardwood Kempsey Pty Ltd v Kempsey Timbers (Sawmilling) Pty Ltd (No 2) [2019] NSWSC 1248

The long service leave issue was separate and distinct from the Unprocessed Stock and pick and pack issues, with discrete and readily identifiable evidence and submissions, so Hurford's recoverable costs should exclude costs of that issue. The 22 October 2018 offer proposing "no order as to costs" did not include an amount for costs and was not expressed to be inclusive of costs, so it did not offend UCPR r 20.26(2)(c). Because Kempsey Timbers did not accept the offer and Hurford achieved a result no less favourable than its terms, UCPR r 42.14 required indemnity costs from 22 October 2018, and there was no reason to order otherwise.

Jurisdiction
Australia
Judgment Date
19 September 2019
Procedural Posture
Costs / Post Judgment Costs Determination on the Papers
Outcome
The cross-claim was dismissed and the defendants/cross-claimants were ordered to pay the plaintiff/cross-defendant's costs, excluding costs of the long service leave issue, on the ordinary basis to 22 October 2018 and on an indemnity basis thereafter.
Legal Topics
['party/party Costs' 'exceptions to Costs Following the Event' 'apportionment of Costs by Issue' 'offer of Compromise' 'indemnity Costs' 'ucpr R 20.26(2)(c)' 'ucpr R 42.14']
['costs' 'civil Procedure' 'equity Commercial List'] ['party/party Costs' 'exceptions to Costs Following the Event' 'apportionment of Costs by Issue' 'offer of Compromise' 'indemnity Costs' 'ucpr R 20.26(2)(c)' 'ucpr R 42.14']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Costs / Post Judgment Costs Determination on the Papers

Legal Issues

  1. 1 ['Whether the costs order in favour of Hurford should exclude costs relating to the long service leave issue on which Hurford failed.' 'Whether an offer of compromise proposing "no order as to costs" contravenes UCPR r 20.26(2)(c).' 'Whether Hurford should receive costs on an indemnity basis from 22 October 2018 because Kempsey Timbers did not accept the offer of compromise and Hurford achieved a result no less favourable than the offer.']

Ratio Decidendi

The long service leave issue was separate and distinct from the Unprocessed Stock and pick and pack issues, with discrete and readily identifiable evidence and submissions, so Hurford's recoverable costs should exclude costs of that issue. The 22 October 2018 offer proposing "no order as to costs" did not include an amount for costs and was not expressed to be inclusive of costs, so it did not offend UCPR r 20.26(2)(c). Because Kempsey Timbers did not accept the offer and Hurford achieved a result no less favourable than its terms, UCPR r 42.14 required indemnity costs from 22 October 2018, and there was no reason to order otherwise.

Court Disposition

The cross-claim was dismissed and the defendants/cross-claimants were ordered to pay the plaintiff/cross-defendant's costs, excluding costs of the long service leave issue, on the ordinary basis to 22 October 2018 and on an indemnity basis thereafter.

Orders

  • ['The cross-claim be dismissed.' 'The defendants/cross-claimants pay the costs of the plaintiff/cross-defendant of the proceedings, excluding the costs of the plaintiff/cross-defendant in relation to the long service leave issue, being the issue referred to at [25(2)] of the judgment of 22 August 2019, such costs to...