Charltons CJC Pty Ltd v Fitzgerald (No 4) [2014] NSWSC 523

Charltons CJC Pty Ltd v Fitzgerald (No 4) [2014] NSWSC 523

The plaintiff succeeded and was entitled to the usual order for costs on the ordinary basis, subject to existing costs orders. Indemnity costs were refused because it was not reasonable to expect the defendants to accept the $300,000 offer of compromise at the time it was made, when only liability was about to be heard, damages had not been quantified or particularised, and further material had been served shortly before the hearing. The defendants' request to reduce the plaintiff's costs to sixty percent was not justified.

Jurisdiction
Australia
Judgment Date
02 May 2014
Procedural Posture
Costs Application / After Liability and Damages Judgments
Outcome
The defendants were ordered to pay the plaintiff's costs of the proceedings on the ordinary basis subject to all existing costs orders, and the parties were ordered to pay their own costs of the costs hearing.
Legal Topics
['usual Order as to Costs' 'indemnity Costs' 'offers of Compromise' 'ordinary Basis Costs' 'discretion as to Costs']
['costs' 'civil Procedure'] ['usual Order as to Costs' 'indemnity Costs' 'offers of Compromise' 'ordinary Basis Costs' 'discretion as to Costs']

Case Brief

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Procedural Posture

Costs Application / After Liability and Damages Judgments

Legal Issues

  1. 1 ["Whether the defendants should pay the plaintiff's costs on an indemnity basis by reason of the plaintiff's offer of compromise dated 3 April 2013." "Whether the defendants should pay only sixty percent of the plaintiff's costs." 'Whether separate costs orders should be made for different aspects of the proceedings, including the initial interlocutory injunction application.' 'Whether the usual order that costs follow the event should apply.']

Ratio Decidendi

The plaintiff succeeded and was entitled to the usual order for costs on the ordinary basis, subject to existing costs orders. Indemnity costs were refused because it was not reasonable to expect the defendants to accept the $300,000 offer of compromise at the time it was made, when only liability was about to be heard, damages had not been quantified or particularised, and further material had been served shortly before the hearing. The defendants' request to reduce the plaintiff's costs to sixty percent was not justified.

Court Disposition

The defendants were ordered to pay the plaintiff's costs of the proceedings on the ordinary basis subject to all existing costs orders, and the parties were ordered to pay their own costs of the costs hearing.

Orders

  • ["The defendants should pay the plaintiff's costs of the proceedings on the ordinary basis subject to all existing costs orders." 'The parties should pay their own costs of the hearing before me today.']