Nadilo v Souris (No 2) [2019] NSWSC 246

Nadilo v Souris (No 2) [2019] NSWSC 246

The correct calculation of judgment amounts is as proposed by the defendant ($162,593 for the first and second plaintiffs, $101,621 for the third and fourth plaintiffs). Pre-judgment interest is refused because the sums were not originally claimed, the amount of interest involved is small, and the plaintiffs acquiesced to the proceeds remaining in trust. Plaintiffs are entitled to a special costs order—75% of their costs, on the ordinary basis up to 26 February 2018 and on indemnity basis thereafter—because their offer of compromise was more generous than the amounts obtained and the defendant's reasons for non-acceptance do not warrant displacement of the rule. The defendant is not...

Jurisdiction
Australia
Judgment Date
12 March 2019
Procedural Posture
Civil (equity) / Post Judgment – Final Orders and Costs
Outcome
Judgment for the plaintiffs; partial costs awarded; defendant not entitled to indemnity out of estate.
Legal Topics
['costs' 'offers of Compromise' 'pre Judgment Interest' 'trusts' 'resulting Trusts' 'constructive Trusts']
['equity' 'civil Procedure'] ['costs' 'offers of Compromise' 'pre Judgment Interest' 'trusts' 'resulting Trusts' 'constructive Trusts']

Case Brief

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Procedural Posture

Civil (equity) / Post Judgment – Final Orders and Costs

Legal Issues

  1. 1 ['What are the correct judgment sums to which the plaintiffs are entitled?' 'Should pre-judgment interest be awarded?' 'Does the offer of compromise entitle plaintiffs to a special costs order?' 'Should the plaintiffs receive only partial costs?' 'Is the defendant entitled to indemnity costs from the estate for any part of her costs?']

Ratio Decidendi

The correct calculation of judgment amounts is as proposed by the defendant ($162,593 for the first and second plaintiffs, $101,621 for the third and fourth plaintiffs). Pre-judgment interest is refused because the sums were not originally claimed, the amount of interest involved is small, and the plaintiffs acquiesced to the proceeds remaining in trust. Plaintiffs are entitled to a special costs order—75% of their costs, on the ordinary basis up to 26 February 2018 and on indemnity basis thereafter—because their offer of compromise was more generous than the amounts obtained and the defendant's reasons for non-acceptance do not warrant displacement of the rule. The defendant is not...

Court Disposition

Judgment for the plaintiffs; partial costs awarded; defendant not entitled to indemnity out of estate.

Orders

  • ['Judgment in favour of the first and second plaintiffs in the amount of $162,593.' 'Judgment in favour of the third and fourth plaintiffs in the amount of $101,621.' "Defendant to pay 75% of the plaintiffs' costs of the proceedings, excluding the costs of the application for orders, assessed on the ordinary basis...