Angela Campbell Pty Ltd as Trustee of the Halina Superannuation Fund v Hengrove Hall Pty Ltd [2016] NSWSC 1219

Angela Campbell Pty Ltd as Trustee of the Halina Superannuation Fund v Hengrove Hall Pty Ltd [2016] NSWSC 1219

Although the plaintiffs discontinued the proceedings, the defendant had provided much of the relief sought and consented to orders in their favour, and the defendant's conduct justified displacing the ordinary operation of UCPR r 42.19(2) for the balance of the proceedings. However, because the disputed legal issues were not determined and the defendant's legal points were not shown to be without merit, the defendant should not be ordered to pay the plaintiffs' costs. The Calderbank offer did not support indemnity costs because it was made before the statement of claim, did not offer a genuine compromise, and the court had not found that the plaintiffs were entitled to relief more...

Jurisdiction
Australia
Judgment Date
31 August 2016
Procedural Posture
Costs Application Following Discontinuance of Proceedings / Determination Whether to Order Otherwise Under Uniform Civil Procedure Rules 2005 (nsw) R 42.19(2) and Whether Indemnity Costs Should Follow a Calderbank Offer
Outcome
The court ordered otherwise under UCPR r 42.19(2) only to the extent that the parties bear their own costs of the balance of the proceedings; indemnity costs were refused and the first plaintiff was ordered to pay the defendant's costs of the interlocutory notice of motion.
Legal Topics
['discontinuance of Proceedings' 'alternative Costs Order Under UCPR R 42.19(2)' 'calderbank Offer' 'indemnity Costs' 'company Title Shares and Licence to Occupy']
['civil Procedure' 'costs' 'equity'] ['discontinuance of Proceedings' 'alternative Costs Order Under UCPR R 42.19(2)' 'calderbank Offer' 'indemnity Costs' 'company Title Shares and Licence to Occupy']

Case Brief

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Procedural Posture

Costs Application Following Discontinuance of Proceedings / Determination Whether to Order Otherwise Under Uniform Civil Procedure Rules 2005 (nsw) R 42.19(2) and Whether Indemnity Costs Should Follow a Calderbank Offer

Legal Issues

  1. 1 ['Whether the court should order otherwise for the purposes of Uniform Civil Procedure Rules 2005 (NSW) r 42.19(2) after the plaintiffs discontinued the proceedings.' "Whether the first plaintiff achieved substantial success and whether the defendant's conduct justified an alternative costs order." "Whether the plaintiffs' Calderbank offer dated 20 November 2015 was a genuine offer of compromise supporting indemnity costs." 'Whether the first plaintiff should bear the costs of its interlocutory notice of motion.']

Ratio Decidendi

Although the plaintiffs discontinued the proceedings, the defendant had provided much of the relief sought and consented to orders in their favour, and the defendant's conduct justified displacing the ordinary operation of UCPR r 42.19(2) for the balance of the proceedings. However, because the disputed legal issues were not determined and the defendant's legal points were not shown to be without merit, the defendant should not be ordered to pay the plaintiffs' costs. The Calderbank offer did not support indemnity costs because it was made before the statement of claim, did not offer a genuine compromise, and the court had not found that the plaintiffs were entitled to relief more...

Court Disposition

The court ordered otherwise under UCPR r 42.19(2) only to the extent that the parties bear their own costs of the balance of the proceedings; indemnity costs were refused and the first plaintiff was ordered to pay the defendant's costs of the interlocutory notice of motion.

Orders

  • ["Order that the first plaintiff pay the defendant's costs of the first plaintiff's notice of motion filed on 30 May 2016." 'Order that all of the parties bear their own costs of the balance of the proceedings.' 'Order that any documents produced on subpoena or notice to produce, as well as the exhibits, may be...