Sande v Medsara Pty Limited (No 2) [2004] NSWSC 262

Sande v Medsara Pty Limited (No 2) [2004] NSWSC 262

Indemnity costs were warranted because the defendant, through Mr Raad, knew the contractual documents contained serious mistakes by comparison with the oral agreement, rejected consensual rectification, maintained a defence necessarily based on facts known to be false, attacked a witness's credit, and called false evidence. That litigation conduct amounted to relevant delinquency and justified departure from the ordinary party and party costs basis.

Jurisdiction
Australia
Judgment Date
02 April 2004
Procedural Posture
Costs Application in Rectification Proceedings / After Reasons for Judgment and Bringing in of Short Minutes of Orders
Outcome
The defendant was ordered to pay the plaintiffs' costs of the proceeding upon the indemnity basis.
Legal Topics
['indemnity Costs' 'rectification' 'unilateral Mistake' 'unconscientious Advantage' 'false Evidence' 'relevant Delinquency']
['costs' 'equity' 'contract Law'] ['indemnity Costs' 'rectification' 'unilateral Mistake' 'unconscientious Advantage' 'false Evidence' 'relevant Delinquency']

Case Brief

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Procedural Posture

Costs Application in Rectification Proceedings / After Reasons for Judgment and Bringing in of Short Minutes of Orders

Legal Issues

  1. 1 ["Whether the defendant should pay the plaintiffs' costs of the proceeding on the indemnity basis." "Whether the defendant's conduct in maintaining a defence known to be false and calling false evidence constituted a special or unusual feature justifying indemnity costs."]

Ratio Decidendi

Indemnity costs were warranted because the defendant, through Mr Raad, knew the contractual documents contained serious mistakes by comparison with the oral agreement, rejected consensual rectification, maintained a defence necessarily based on facts known to be false, attacked a witness's credit, and called false evidence. That litigation conduct amounted to relevant delinquency and justified departure from the ordinary party and party costs basis.

Court Disposition

The defendant was ordered to pay the plaintiffs' costs of the proceeding upon the indemnity basis.

Orders

  • ["Order that the defendant pay the plaintiffs' costs of the proceeding upon the indemnity basis."]