Bastas v Hodes (No 3) [2009] NSWSC 1191

Bastas v Hodes (No 3) [2009] NSWSC 1191

The plaintiffs did not demonstrate exceptional circumstances to avoid indemnity costs because the contract and Fair Trading Act claims had negligible prospects of success, so the defendant was entitled to costs on an ordinary basis to 22 November 2007 and on an indemnity basis from 23 November 2007. Interest on costs was refused because Civil Procedure Act 2005, s 101(4) does not extend to payments made by Mr Hodes to his solicitors and there was no evidence of any costs order against him or payment under such an order.

Jurisdiction
Australia
Judgment Date
28 October 2009
Procedural Posture
Procedural and Other Rulings; Costs / Ex Tempore Judgment on Costs After Proceedings Were Struck Out
Outcome
Indemnity costs ordered. No order for interest on costs.
Legal Topics
['indemnity Costs' 'offers Not Accepted' 'exceptional Circumstances' 'interest on Costs' 'uniform Civil Procedure Rules 2005 Pt 42 R 42.15 A' 'civil Procedure Act 2005, S 101(4)']
['civil Procedure' 'costs'] ['indemnity Costs' 'offers Not Accepted' 'exceptional Circumstances' 'interest on Costs' 'uniform Civil Procedure Rules 2005 Pt 42 R 42.15 A' 'civil Procedure Act 2005, S 101(4)']

Case Brief

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Procedural Posture

Procedural and Other Rulings; Costs / Ex Tempore Judgment on Costs After Proceedings Were Struck Out

Legal Issues

  1. 1 ["Whether exceptional circumstances were shown to avoid indemnity costs under the Uniform Civil Procedure Rules 2005 Pt 42 r 42.15A after the defendant's offer was not accepted and the defendant obtained a more favourable result." 'Whether interest on costs under the Civil Procedure Act 2005, s 101(4) is limited to amounts payable under orders for costs or extends to payments made by a party to his solicitors.']

Ratio Decidendi

The plaintiffs did not demonstrate exceptional circumstances to avoid indemnity costs because the contract and Fair Trading Act claims had negligible prospects of success, so the defendant was entitled to costs on an ordinary basis to 22 November 2007 and on an indemnity basis from 23 November 2007. Interest on costs was refused because Civil Procedure Act 2005, s 101(4) does not extend to payments made by Mr Hodes to his solicitors and there was no evidence of any costs order against him or payment under such an order.

Court Disposition

Indemnity costs ordered. No order for interest on costs.

Orders

  • ["The plaintiffs pay the defendant's costs on an ordinary basis to 22 November 2007 and from 23 November 2007 on an indemnity basis." "The plaintiffs pay the defendant's costs, on an indemnity basis, of and incidental to the claim for loss of profits which was abandoned by the plaintiffs on 24 April 2009 and...