NR Addlestone Pty Ltd v Henry and Kogan (No 2) [2021] NSWSC 1468

NR Addlestone Pty Ltd v Henry and Kogan (No 2) [2021] NSWSC 1468

The Court refused indemnity costs because, although the plaintiffs' case and resistance to summary dismissal were weak, the combined effect of the size of the Conceded Differential, the legal issues, the detailed evidence about the Sale Process, and the high threshold for summary dismissal meant it could not be said that the plaintiffs, properly advised, should have known they had no chance of success. The plaintiffs' challenge to the Receivers' costs of responding to the statement of claim was rejected because their position resulted from their own forensic decisions and delay, and the Receivers' request for particulars was appropriate and orthodox. The plaintiffs were therefore liable...

Jurisdiction
Australia
Judgment Date
16 November 2021
Procedural Posture
Costs / On the Papers Costs Determination Following Summary Dismissal of the Plaintiffs' Claim Against the Receivers
Outcome
Receivers' application for indemnity costs refused; plaintiffs ordered to pay the first defendants' costs of the proceedings on the ordinary basis, assessed and payable forthwith.
Legal Topics
['party/party Costs' 'ordinary Basis' 'indemnity Costs' 'summary Dismissal' 'receivers and Managers' 'mortgagee in Possession']
['civil Procedure' 'costs' 'equity'] ['party/party Costs' 'ordinary Basis' 'indemnity Costs' 'summary Dismissal' 'receivers and Managers' 'mortgagee in Possession']

Case Brief

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Procedural Posture

Costs / On the Papers Costs Determination Following Summary Dismissal of the Plaintiffs' Claim Against the Receivers

Legal Issues

  1. 1 ["Whether the plaintiffs should pay the Receivers' costs of the proceedings on the indemnity basis rather than the ordinary basis." "Whether no costs order should be made in respect of the Receivers' costs in responding to the statement of claim." 'Whether the plaintiffs, properly advised, should have known that their proceedings or their resistance to the summary dismissal motion had no chance of success.']

Ratio Decidendi

The Court refused indemnity costs because, although the plaintiffs' case and resistance to summary dismissal were weak, the combined effect of the size of the Conceded Differential, the legal issues, the detailed evidence about the Sale Process, and the high threshold for summary dismissal meant it could not be said that the plaintiffs, properly advised, should have known they had no chance of success. The plaintiffs' challenge to the Receivers' costs of responding to the statement of claim was rejected because their position resulted from their own forensic decisions and delay, and the Receivers' request for particulars was appropriate and orthodox. The plaintiffs were therefore liable...

Court Disposition

Receivers' application for indemnity costs refused; plaintiffs ordered to pay the first defendants' costs of the proceedings on the ordinary basis, assessed and payable forthwith.

Orders

  • ["The plaintiffs are to pay the first defendants' costs of the proceedings." 'The costs referred to in the preceding order are to be assessed and payable forthwith.']