Mistrina Pty Ltd v Australian Consulting Engineers Pty Ltd - Costs [2020] NSWSC 633

Mistrina Pty Ltd v Australian Consulting Engineers Pty Ltd - Costs [2020] NSWSC 633

Given the plaintiffs' loss, financial incapacity, the offer of compromise made on 25 October 2018, and the entry of Pretium Funding Pty Ltd as a commercial litigation funder with a significant interest, justice dictates that (i) the plaintiffs pay the defendant's costs, with indemnity costs from 11am on 26 October 2018, (ii) Pretium Funding Pty Ltd be jointly and severally liable for the defendant's costs from 15 March 2019, and (iii) the conditions for payment out of security have not yet been met.

Parties
First Plaintiff: Mistrina Pty Ltd; Second Plaintiff: Estate of the late Elias Sikos; Defendant: Australian Consulting Engineers Pty Ltd; Litigation Funder/non Party: Pretium Funding Pty Ltd
Jurisdiction
Australia
Judgment Date
26 May 2020
Procedural Posture
Costs Application (equity Technology and Construction List) / Post Judgment (determination of Costs)
Outcome
Defendant's costs application granted. Plaintiffs ordered to pay defendant's costs, indemnity costs from 11am on 26 October 2018. Pretium Funding Pty Ltd jointly and severally liable with plaintiffs for defendant's costs from 15 March 2019. Application for immediate payment out of security dismissed.
Legal Topics
Indemnity Costs, Non Party Costs Order, Litigation Funder Liability, Offer of Compromise, Security for Costs
Civil Procedure Equity Costs Indemnity Costs Non Party Costs Order Litigation Funder Liability Offer of Compromise Security for Costs

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 5 Authorities cited 16 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

Mistrina Pty Ltd

First Plaintiff

Estate of the late Elias Sikos

Second Plaintiff

Australian Consulting Engineers Pty Ltd

Defendant

Pretium Funding Pty Ltd

Litigation Funder/non Party

Procedural Posture

Costs Application (equity Technology and Construction List) / Post Judgment (determination of Costs)

Legal Issues

  1. 1 Should costs be awarded against the plaintiffs and, if so, on what basis?
  2. 2 Is it appropriate to make a non-party costs order against the litigation funder, Pretium Funding Pty Ltd?
  3. 3 Should the security paid into court be released to the defendant?

Ratio Decidendi

Given the plaintiffs' loss, financial incapacity, the offer of compromise made on 25 October 2018, and the entry of Pretium Funding Pty Ltd as a commercial litigation funder with a significant interest, justice dictates that (i) the plaintiffs pay the defendant's costs, with indemnity costs from 11am on 26 October 2018, (ii) Pretium Funding Pty Ltd be jointly and severally liable for the defendant's costs from 15 March 2019, and (iii) the conditions for payment out of security have not yet been met.

Court Disposition

Defendant's costs application granted. Plaintiffs ordered to pay defendant's costs, indemnity costs from 11am on 26 October 2018. Pretium Funding Pty Ltd jointly and severally liable with plaintiffs for defendant's costs from 15 March 2019. Application for immediate payment out of security dismissed.

Orders

  • The plaintiffs are to pay the defendant's costs of the proceedings.
  • The costs incurred from 11am on 26 October 2018 are to be paid on the indemnity basis.