Cleve Smith Excavations Pty Ltd v Hodgson [No 2] [2010] NSWDC 270

Cleve Smith Excavations Pty Ltd v Hodgson [No 2] [2010] NSWDC 270

Application to re-open judgment dismissed as relevant findings on the disputed issue were made in the primary judgment. After set-off between claim and cross claim, judgment for the defendant/cross claimant. Plaintiff to pay ordinary costs; indemnity costs not awarded due to reasonableness of not accepting offer, considering the short period for acceptance and the incomplete development of respective cases at the time.

Jurisdiction
Australia
Judgment Date
03 December 2010
Procedural Posture
Civil / Post Trial Judgment (supplementary Reasons and Orders)
Outcome
Judgment for the defendant/cross claimant after set-off; plaintiff's application to re-open dismissed; ordinary costs awarded to defendant/cross claimant.
Legal Topics
['judgment Calculation' 'interest' 'set Off' 'costs' 'breach of Covenant of Quiet Enjoyment']
['contract Law' 'civil Procedure'] ['judgment Calculation' 'interest' 'set Off' 'costs' 'breach of Covenant of Quiet Enjoyment']

Case Brief

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Procedural Posture

Civil / Post Trial Judgment (supplementary Reasons and Orders)

Legal Issues

  1. 1 ['Calculation of final judgment amount including interest' 'Appropriateness of set-off between claim and cross claim' 'Application to re-open judgment' 'Entitlement to costs and indemnity costs']

Ratio Decidendi

Application to re-open judgment dismissed as relevant findings on the disputed issue were made in the primary judgment. After set-off between claim and cross claim, judgment for the defendant/cross claimant. Plaintiff to pay ordinary costs; indemnity costs not awarded due to reasonableness of not accepting offer, considering the short period for acceptance and the incomplete development of respective cases at the time.

Court Disposition

Judgment for the defendant/cross claimant after set-off; plaintiff's application to re-open dismissed; ordinary costs awarded to defendant/cross claimant.

Orders

  • ['After set-off of respective claims, judgment for the defendant/cross claimant against the plaintiff/cross defendant in the sum of $73,484.37.' "Plaintiff to pay defendant/cross claimant's costs of the primary claim and cross claim on the ordinary basis." 'Exhibits may be returned.']