Quin v O'Malley trading as Yellamo Building Certifiers & Another [2006] NSWLEC 107

Quin v O'Malley trading as Yellamo Building Certifiers & Another [2006] NSWLEC 107

The first respondent was entitled to party and party costs because the applicant's allegations seriously put his professional competence and integrity in issue, making it appropriate for him to have separate representation and to defend the proceedings despite no direct relief being sought against him. Indemnity costs were refused because the applicant's case was not shown to have no chance of success or to involve relevant delinquency, and it was not unreasonable for the applicant to refuse the first respondent's offer. The second respondent's costs application was premature because proceedings between the applicant and second respondent remained unresolved.

Jurisdiction
Australia
Judgment Date
27 March 2006
Procedural Posture
Costs Application in Class 4 Planning and Environmental Proceedings / Following Judgment Delivered on 16 September 2005; First Respondent Sought Costs Including Indemnity Costs, and Second Respondent Sought Costs Before Final Judgment
Outcome
The first respondent was awarded party and party costs; indemnity costs were refused; the second respondent's costs motion was stood over to final judgment and costs between the applicant and second respondent were reserved.
Legal Topics
['party and Party Costs' 'indemnity Costs' 'offer of Compromise' 'real Contradictor' 'construction Certificate' 'wednesbury Unreasonableness']
['costs' 'planning and Environment' 'administrative Law'] ['party and Party Costs' 'indemnity Costs' 'offer of Compromise' 'real Contradictor' 'construction Certificate' 'wednesbury Unreasonableness']

Case Brief

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Procedural Posture

Costs Application in Class 4 Planning and Environmental Proceedings / Following Judgment Delivered on 16 September 2005; First Respondent Sought Costs Including Indemnity Costs, and Second Respondent Sought Costs Before Final Judgment

Legal Issues

  1. 1 ['Whether the usual presumption that a successful party receives costs should be displaced because of disentitling conduct by the first respondent or because the first respondent was not the real contradictor.' 'Whether the first respondent was entitled to indemnity costs from 9 June 2005 because the proceedings were unreasonably continued or because the applicant unreasonably failed to accept an offer of compromise.' "Whether the second respondent's costs application should be determined before final judgment in the remaining proceedings."]

Ratio Decidendi

The first respondent was entitled to party and party costs because the applicant's allegations seriously put his professional competence and integrity in issue, making it appropriate for him to have separate representation and to defend the proceedings despite no direct relief being sought against him. Indemnity costs were refused because the applicant's case was not shown to have no chance of success or to involve relevant delinquency, and it was not unreasonable for the applicant to refuse the first respondent's offer. The second respondent's costs application was premature because proceedings between the applicant and second respondent remained unresolved.

Court Disposition

The first respondent was awarded party and party costs; indemnity costs were refused; the second respondent's costs motion was stood over to final judgment and costs between the applicant and second respondent were reserved.

Orders

  • ["The applicant pay the first respondent's costs of and incidental to the proceedings including the motion for costs as agreed or assessed on a party and party basis." "The second respondent's Notice of Motion dated 30 November 2005 stood over to final judgment." 'Costs reserved as between the applicant and the...