Joseph Taouk v Assure (NSW) Pty Ltd [2017] NSWSC 778

Joseph Taouk v Assure (NSW) Pty Ltd [2017] NSWSC 778

The defendant's costs of successfully meeting the plaintiff's claim and of the cross claim fell within clause 24 of the Development Agreement. Although the plaintiff relied on alleged oral agreements, his claim fundamentally relied on the Development Agreement and its Variation, and the defendant's resistance to the claim involved preserving its rights under the Development Agreement. The cross claim costs were incurred in preserving and enforcing the contractual indemnity and guarantee. The contractual arrangement therefore played a significant, if not determinative, role in the exercise of the costs discretion, justifying an indemnity costs order.

Jurisdiction
Australia
Judgment Date
16 June 2017
Procedural Posture
Costs / After Judgment on 4 May 2017 and Orders on 23 May 2017; Costs Determined on the Papers
Outcome
Defendant awarded costs on an indemnity basis.
Legal Topics
['indemnity Costs' 'contractual Indemnity' 'costs Discretion' 'costs Follow the Event' 'development Agreement' 'cross Claim']
['costs' 'civil Procedure' 'contract'] ['indemnity Costs' 'contractual Indemnity' 'costs Discretion' 'costs Follow the Event' 'development Agreement' 'cross Claim']

Case Brief

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Procedural Posture

Costs / After Judgment on 4 May 2017 and Orders on 23 May 2017; Costs Determined on the Papers

Legal Issues

  1. 1 ["Whether the plaintiff should pay the defendant's costs of the proceedings, including the costs of the cross claim." 'Whether those costs should be awarded on an indemnity basis under clause 24.1 of the Development Agreement.' "Whether any indemnity costs should be limited or apportioned to the costs of the defendant's cross claim."]

Ratio Decidendi

The defendant's costs of successfully meeting the plaintiff's claim and of the cross claim fell within clause 24 of the Development Agreement. Although the plaintiff relied on alleged oral agreements, his claim fundamentally relied on the Development Agreement and its Variation, and the defendant's resistance to the claim involved preserving its rights under the Development Agreement. The cross claim costs were incurred in preserving and enforcing the contractual indemnity and guarantee. The contractual arrangement therefore played a significant, if not determinative, role in the exercise of the costs discretion, justifying an indemnity costs order.

Court Disposition

Defendant awarded costs on an indemnity basis.

Orders

  • ["The plaintiff pay the defendant's costs of the proceedings, being the costs on the determination of the separate questions and the costs incurred on the cross claim, on an indemnity basis."]