Bookarelli Pty Ltd v Katanga Developments Pty Ltd (No 2) [2017] NSWCA 94

Bookarelli Pty Ltd v Katanga Developments Pty Ltd (No 2) [2017] NSWCA 94

Indemnity costs were warranted because Bookarelli did not advance a reasonably arguable case for judicial review of the District Court decision, the weakness of its case should have been apparent to its legal advisers before the summons was filed, its successive challenges concerned a relatively modest amount, those unsuccessful challenges had already generated substantial costs and deprived Katanga of some of the fruits of the Consent Costs Order, and requiring Katanga to bear further unrecovered costs would unjustly deprive it of yet more of those fruits.

Jurisdiction
Australia
Judgment Date
11 May 2017
Procedural Posture
Appeal; Judicial Review; Costs / Costs Determination on the Papers After Dismissal of the Amended Summons
Outcome
Order 2 made on 5 April 2017 was replaced with an order requiring the applicant to pay the respondent's costs of and incidental to the Court proceedings on an indemnity basis.
Legal Topics
['indemnity Costs' 'costs Discretion' 'jurisdictional Error' 'supervisory Jurisdiction' 'costs Assessment']
['civil Procedure' 'costs' 'judicial Review'] ['indemnity Costs' 'costs Discretion' 'jurisdictional Error' 'supervisory Jurisdiction' 'costs Assessment']

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Procedural Posture

Appeal; Judicial Review; Costs / Costs Determination on the Papers After Dismissal of the Amended Summons

Legal Issues

  1. 1 ["Whether the applicant should be ordered to pay the respondent's costs of the proceedings in the Court on an indemnity basis." "Whether the applicant's judicial review case was not reasonably arguable and whether that warranted departure from the ordinary basis for costs."]

Ratio Decidendi

Indemnity costs were warranted because Bookarelli did not advance a reasonably arguable case for judicial review of the District Court decision, the weakness of its case should have been apparent to its legal advisers before the summons was filed, its successive challenges concerned a relatively modest amount, those unsuccessful challenges had already generated substantial costs and deprived Katanga of some of the fruits of the Consent Costs Order, and requiring Katanga to bear further unrecovered costs would unjustly deprive it of yet more of those fruits.

Court Disposition

Order 2 made on 5 April 2017 was replaced with an order requiring the applicant to pay the respondent's costs of and incidental to the Court proceedings on an indemnity basis.

Orders

  • ["In lieu of Order 2 made by this Court on 5 April 2017, order the applicant to pay the respondent's costs of and incidental to the proceedings in this Court on an indemnity basis."]