Young v Smith (No 2) [2015] NSWSC 1267

Young v Smith (No 2) [2015] NSWSC 1267

Indemnity costs were warranted because Ms Smith gave evidence and conducted the proceedings while knowing that she had mortgaged the very Property in issue to Westpac despite an injunction, failed to disclose that fact, and thereby caused the proceedings to be conducted on a false basis, robbed them of utility, and put the asset beyond Mrs Young's reach. This was more than merely giving evidence the Court did not accept or advancing an unsuccessful case.

Jurisdiction
Australia
Judgment Date
02 September 2015
Procedural Posture
Costs / Notice of Motion Filed on 30 July 2015 Seeking Indemnity Costs and Lump Sum Costs After Primary Judgment; Lump Sum Issue Deferred, Leaving Whether Ms Smith Should Pay Costs on an Indemnity Basis.
Outcome
The plaintiff was held entitled to indemnity costs for both the primary proceedings and the mortgage proceedings; parties were invited to prepare short minutes.
Legal Topics
['indemnity Costs' 'calderbank Offer' 'adverse Credit Findings' 'proceedings Conducted on False Basis' 'mortgage Over Property Subject to Injunction']
['costs' 'civil Procedure'] ['indemnity Costs' 'calderbank Offer' 'adverse Credit Findings' 'proceedings Conducted on False Basis' 'mortgage Over Property Subject to Injunction']

Case Brief

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Procedural Posture

Costs / Notice of Motion Filed on 30 July 2015 Seeking Indemnity Costs and Lump Sum Costs After Primary Judgment; Lump Sum Issue Deferred, Leaving Whether Ms Smith Should Pay Costs on an Indemnity Basis.

Legal Issues

  1. 1 ["Whether the plaintiff's letter dated 10 September 2014 supported an order for indemnity costs." "Whether Ms Smith's conduct of the defence of the proceedings justified indemnity costs." "Whether Ms Smith's mortgaging of the Property despite an injunction justified indemnity costs." 'Whether indemnity costs should extend to both the primary proceedings and the post-judgment mortgage proceedings.']

Ratio Decidendi

Indemnity costs were warranted because Ms Smith gave evidence and conducted the proceedings while knowing that she had mortgaged the very Property in issue to Westpac despite an injunction, failed to disclose that fact, and thereby caused the proceedings to be conducted on a false basis, robbed them of utility, and put the asset beyond Mrs Young's reach. This was more than merely giving evidence the Court did not accept or advancing an unsuccessful case.

Court Disposition

The plaintiff was held entitled to indemnity costs for both the primary proceedings and the mortgage proceedings; parties were invited to prepare short minutes.

Orders

  • ['The plaintiff is entitled to costs on an indemnity basis for both the primary and the mortgage proceedings.' 'The parties are invited to prepare short minutes to give effect to the reasons.']