Brakikki Pty Limited v Gofur (No 2) [2011] NSWDC 199

Brakikki Pty Limited v Gofur (No 2) [2011] NSWDC 199

The slip rule application was refused because the judgment sum of $32,640.33 after set-off was the order the judge intended to make for the defendant's breach of the lease, and the damages in Appendix I remained a proper basis for assessment notwithstanding the lease termination issue. Indemnity costs were refused because the plaintiff's offers would have required the defendant to abandon a cross claim on which he ultimately succeeded, so rejection was not unreasonable and the ordinary costs rule should separately apply to the plaintiff's claim and the cross claim.

Jurisdiction
Australia
Judgment Date
16 December 2011
Procedural Posture
Civil Proceeding Concerning Commercial Lease Claim, Cross Claim, Slip Rule Amendment and Costs / Consequential Orders After Principal Judgment
Outcome
The defendant's application for amendment of the principal judgment was refused; indemnity costs were not ordered; ordinary costs orders were made separately for the plaintiff's claim and the defendant's cross claim.
Legal Topics
['slip Rule Amendment Under UCPR R 36.17' 'indemnity Costs' 'offers of Compromise Under UCPR R 20.26' 'calderbank Offers' 'misleading or Deceptive Conduct Cross Claim' 'unpaid Rent, Outgoings, GST and Interest']
['practice and Procedure' 'costs' 'commercial Leases'] ['slip Rule Amendment Under UCPR R 36.17' 'indemnity Costs' 'offers of Compromise Under UCPR R 20.26' 'calderbank Offers' 'misleading or Deceptive Conduct Cross Claim' 'unpaid Rent, Outgoings, GST and Interest']

Case Brief

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Procedural Posture

Civil Proceeding Concerning Commercial Lease Claim, Cross Claim, Slip Rule Amendment and Costs / Consequential Orders After Principal Judgment

Legal Issues

  1. 1 ['Whether the principal judgment should be amended under UCPR r 36.17 to reduce the judgment amount on the basis of an alleged clerical error in the calculation of rent and outgoings after termination of the lease.' "Whether the plaintiff should receive indemnity costs because of the defendant's non-acceptance of offers of compromise or Calderbank offers." 'Whether the cost limiting provisions in UCPR r 42.35 affected the appropriate costs order given the amount recovered after set-off.']

Ratio Decidendi

The slip rule application was refused because the judgment sum of $32,640.33 after set-off was the order the judge intended to make for the defendant's breach of the lease, and the damages in Appendix I remained a proper basis for assessment notwithstanding the lease termination issue. Indemnity costs were refused because the plaintiff's offers would have required the defendant to abandon a cross claim on which he ultimately succeeded, so rejection was not unreasonable and the ordinary costs rule should separately apply to the plaintiff's claim and the cross claim.

Court Disposition

The defendant's application for amendment of the principal judgment was refused; indemnity costs were not ordered; ordinary costs orders were made separately for the plaintiff's claim and the defendant's cross claim.

Orders

  • ['The application for amendment of the principal judgment pursuant to UCPR r 36.17 is refused.' "The defendant is to pay the plaintiff's costs of the refused slip rule application for amendment to the principal judgment." "The defendant is to pay the plaintiff's costs of the plaintiff's proceedings on the ordinary...