Kirkpatrick v Kotis [2005] NSWSC 178

Kirkpatrick v Kotis [2005] NSWSC 178

Despite some elements of success by the plaintiff, the fundamental failure to prove a key element of the contempt charge means costs should follow the event, and the plaintiff is to pay the defendant's costs, excluding costs related to the preparation of affidavits not relied upon. Interest on costs is to be paid from the date of actual payment by the defendant.

Parties
Plaintiff: Benjamin David Kirkpatrick; Defendant: Michael Kotis
Jurisdiction
Australia
Judgment Date
09 March 2005
Procedural Posture
Contempt Application / Post Judgment Costs Determination
Outcome
Plaintiff to pay defendant's costs of the notice of motion to commit for contempt, excluding costs connected with drawing of the defendant's affidavits. Plaintiff to pay interest on any costs required to be paid, calculated from date of actual payment.
Legal Topics
Costs, Contempt of Court, Interlocutory Injunctions
Equity Civil Procedure Costs Contempt of Court Interlocutory Injunctions

Case Brief

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Parties

Benjamin David Kirkpatrick

Plaintiff

Michael Kotis

Defendant

Procedural Posture

Contempt Application / Post Judgment Costs Determination

Legal Issues

  1. 1 Whether the plaintiff should pay the defendant's costs in a contempt application where the plaintiff succeeded on some issues but failed overall
  2. 2 Whether costs should be apportioned to reflect partial success by the plaintiff
  3. 3 The effect of the defendant's conduct regarding affidavits on the costs order

Ratio Decidendi

Despite some elements of success by the plaintiff, the fundamental failure to prove a key element of the contempt charge means costs should follow the event, and the plaintiff is to pay the defendant's costs, excluding costs related to the preparation of affidavits not relied upon. Interest on costs is to be paid from the date of actual payment by the defendant.

Court Disposition

Plaintiff to pay defendant's costs of the notice of motion to commit for contempt, excluding costs connected with drawing of the defendant's affidavits. Plaintiff to pay interest on any costs required to be paid, calculated from date of actual payment.

Orders

  • Plaintiff to pay defendant's costs of the notice of motion to commit for contempt, excluding those costs connected with the drawing of the defendant's affidavits.
  • Plaintiff to pay interest on any costs required to be paid, at the rate under Schedule J Supreme Court Rules 1970, from the date(s) when amounts in respect of such costs were actually paid.