Jingalong Pty Ltd v Todd & Anor [2016] NSWSC 715

Jingalong Pty Ltd v Todd & Anor [2016] NSWSC 715

Because the settlement agreement released the substantive claims but was not completed due to Mr Todd's failure to provide his agreed contribution, the costs incurred after 12 March 2013 were caused by Mr Todd and he should pay the defendants' post-settlement costs on the ordinary basis. Indemnity costs were not justified because Jingalong's 19 February 2015 letter wrongly asserted that the orders it sought were inevitable and those orders were not ultimately pursued. Jingalong was not entitled to costs against Mr Pernice because Jingalong's conduct, including the fraud finding relied on by Kunc J, caused the litigation, and Mr Pernice was not at fault for the non-completion of the...

Jurisdiction
Australia
Judgment Date
06 June 2016
Procedural Posture
Costs Application in Equity Proceedings After Appeal and Remitter / Determination of Costs and Disposal of Cross Claims
Outcome
The plaintiff was ordered to pay the defendants' post-12 March 2013 costs on the ordinary basis except costs of the 9 March 2016 hearing; the first defendant's application for costs against the second defendant was refused; both cross-claims were dismissed; and the first defendant was ordered to pay the second...
Legal Topics
['costs After Settlement Agreement' 'accord and Satisfaction' 'indefeasibility Under S 42 of the Real Property Act 1900 (nsw)' 'fraud Exception' 'personal Equity' 'dismissal of Cross Claims']
['practice and Procedure' 'costs' 'equity' 'real Property'] ['costs After Settlement Agreement' 'accord and Satisfaction' 'indefeasibility Under S 42 of the Real Property Act 1900 (nsw)' 'fraud Exception' 'personal Equity' 'dismissal of Cross Claims']

Case Brief

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Procedural Posture

Costs Application in Equity Proceedings After Appeal and Remitter / Determination of Costs and Disposal of Cross Claims

Legal Issues

  1. 1 ["Whether the plaintiff should pay the defendants' costs of the proceedings after the settlement agreement dated 12 March 2013." "Whether the first defendant should recover costs from the second defendant despite the findings about the first defendant's conduct causing the litigation." 'Whether indemnity costs should be ordered from 19 February 2015.' "How the first and second cross-claims should be disposed of after the Court of Appeal's orders and the parties' positions."]

Ratio Decidendi

Because the settlement agreement released the substantive claims but was not completed due to Mr Todd's failure to provide his agreed contribution, the costs incurred after 12 March 2013 were caused by Mr Todd and he should pay the defendants' post-settlement costs on the ordinary basis. Indemnity costs were not justified because Jingalong's 19 February 2015 letter wrongly asserted that the orders it sought were inevitable and those orders were not ultimately pursued. Jingalong was not entitled to costs against Mr Pernice because Jingalong's conduct, including the fraud finding relied on by Kunc J, caused the litigation, and Mr Pernice was not at fault for the non-completion of the...

Court Disposition

The plaintiff was ordered to pay the defendants' post-12 March 2013 costs on the ordinary basis except costs of the 9 March 2016 hearing; the first defendant's application for costs against the second defendant was refused; both cross-claims were dismissed; and the first defendant was ordered to pay the second...

Orders

  • ["Order that the plaintiff pay the defendants' costs of the proceedings after 12 March 2013 on the ordinary basis, other than costs of and incidental to the hearing on 9 March 2016." "Refuse the first defendant's application that the second defendant pay its costs." 'Order that the first and second cross-claims be...