Garzo v Liverpool/Campbelltown Christian School Limited & Anor [2011] NSWSC 498

Garzo v Liverpool/Campbelltown Christian School Limited & Anor [2011] NSWSC 498

Order 3 contained an accidental error because there was only one cross-claim, filed by the School against Turner, so it should be corrected to enter judgment for Turner on that cross-claim. Turner was entitled to costs of the cross-claim because judgment on the cross-claim was in its favour and costs ordinarily follow the event. Indemnity costs against the School for the entire proceedings were refused because Turner's premise that different conduct by the School would have prevented or ended the plaintiff's claim against Turner was not borne out by events, the plaintiff's claim was broader than the later-painting factual issue, and there was no exceptional conduct by the School making it...

Jurisdiction
Australia
Judgment Date
03 June 2011
Procedural Posture
Common Law; Procedural and Other Rulings / Post Judgment Application to Vary Orders Under the Slip Rule and for Costs
Outcome
Application allowed in part: order 3 was vacated and corrected, costs of the cross-claim were awarded to the cross-defendant, and the second defendant's application for indemnity costs against the first defendant was dismissed.
Legal Topics
['ucpr Slip Rule' 'error in Order' 'cross Claim Costs' 'indemnity Costs' 'costs Follow the Event']
['practice and Procedure' 'costs' 'negligence'] ['ucpr Slip Rule' 'error in Order' 'cross Claim Costs' 'indemnity Costs' 'costs Follow the Event']

Case Brief

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Procedural Posture

Common Law; Procedural and Other Rulings / Post Judgment Application to Vary Orders Under the Slip Rule and for Costs

Legal Issues

  1. 1 ['Whether order 3 of the orders made on 15 April 2011 contained a clerical mistake or accidental slip requiring correction under r 36.17 of the Uniform Civil Procedure Rules 2005.' 'Whether the second defendant/cross-defendant should have its costs of the cross-claim after judgment on the cross-claim in its favour.' "Whether the first defendant/cross-claimant should pay the second defendant's costs of the entire proceedings on an indemnity basis."]

Ratio Decidendi

Order 3 contained an accidental error because there was only one cross-claim, filed by the School against Turner, so it should be corrected to enter judgment for Turner on that cross-claim. Turner was entitled to costs of the cross-claim because judgment on the cross-claim was in its favour and costs ordinarily follow the event. Indemnity costs against the School for the entire proceedings were refused because Turner's premise that different conduct by the School would have prevented or ended the plaintiff's claim against Turner was not borne out by events, the plaintiff's claim was broader than the later-painting factual issue, and there was no exceptional conduct by the School making it...

Court Disposition

Application allowed in part: order 3 was vacated and corrected, costs of the cross-claim were awarded to the cross-defendant, and the second defendant's application for indemnity costs against the first defendant was dismissed.

Orders

  • ['Vacate order 3 of the orders made on 15 April 2011.' "In lieu thereof, order that there be judgment for the second defendant/cross-defendant on the first defendant's/cross-claimant's claim." "Order that the cross-claimant pay the cross-defendant's costs of the cross-claim." 'Dismiss the application by the second...