Australian Unity Retirement Living Management Pty Ltd v Karimbla Properties (No. 10) Pty Limited (No. 3) [2020] NSWSC 941

Australian Unity Retirement Living Management Pty Ltd v Karimbla Properties (No. 10) Pty Limited (No. 3) [2020] NSWSC 941

The omission of an order that the cross-defendants pay the cross-claimants' costs of the Cross-Claim was an accidental omission within UCPR r 36.17 because the Court's second judgment expressly stated that the cross-claimants should have those costs, and Order 6 dealt only with costs of the principal claim. The objections based on delay, absence of evidence, contentiousness, costs assessment, and the prior 25 per cent costs discount did not prevent correction. However, the recoverable costs were confined to costs of the Cross-Claim incurred up to 31 May 2019, excluding costs associated with unsuccessful attempts to amend the Cross-Claim after the first judgment.

Jurisdiction
Australia
Judgment Date
23 July 2020
Procedural Posture
Equity Proceeding Concerning Costs on a Cross Claim / Decided in Chambers on the Papers on an Application Under the Slip Rule After Costs Assessment Issue Arose
Outcome
Order for costs made on the Cross-Claim under the slip rule.
Legal Topics
['slip Rule' 'correction of Orders' 'costs of Cross Claim' 'easements' 'right of Carriageway']
['civil Procedure' 'costs' 'equity'] ['slip Rule' 'correction of Orders' 'costs of Cross Claim' 'easements' 'right of Carriageway']

Case Brief

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Procedural Posture

Equity Proceeding Concerning Costs on a Cross Claim / Decided in Chambers on the Papers on an Application Under the Slip Rule After Costs Assessment Issue Arose

Legal Issues

  1. 1 ['Whether the Court should correct an omission in its orders under Uniform Civil Procedure Rules 2005, r 36.17 to make a costs order on the Cross-Claim.' 'Whether Order 6 of the orders made on 2 September 2019 dealt with costs of the Cross-Claim.' 'Whether delay, contentious submissions, or the existing costs discount prevented the application of the slip rule.' 'Whether the recoverable costs of the Cross-Claim should be limited.']

Ratio Decidendi

The omission of an order that the cross-defendants pay the cross-claimants' costs of the Cross-Claim was an accidental omission within UCPR r 36.17 because the Court's second judgment expressly stated that the cross-claimants should have those costs, and Order 6 dealt only with costs of the principal claim. The objections based on delay, absence of evidence, contentiousness, costs assessment, and the prior 25 per cent costs discount did not prevent correction. However, the recoverable costs were confined to costs of the Cross-Claim incurred up to 31 May 2019, excluding costs associated with unsuccessful attempts to amend the Cross-Claim after the first judgment.

Court Disposition

Order for costs made on the Cross-Claim under the slip rule.

Orders

  • ["The cross-defendants shall pay the cross-claimants' costs of the cross-claim incurred up to 31 May 2019 on the ordinary basis." 'Order (1) is in addition to and separate from order 6 of the orders made on 2 September 2019.' 'There shall be no order as to the costs of this application under the slip rule, to the...