Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2009] NSWSC 698

Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2009] NSWSC 698

The defendant was substantially unsuccessful in its security for costs application, having failed to obtain any order for security, and unreasonably refused a compromise offer that was at least as advantageous as what was ultimately achieved. Therefore, the defendant should pay the first plaintiff's costs of the motion, on the ordinary basis up to 29 May 2009 and on the indemnity basis thereafter.

Parties
First Plaintiff: Tim Barr Pty Limited; Second Plaintiff: Timothy James Barr; Defendant: Narui Gold Coast Pty Limited
Jurisdiction
Australia
Judgment Date
23 July 2009
Procedural Posture
Application for Security for Costs / Consequential Orders as to Costs Following Judgment on Security for Costs Application
Outcome
Defendant to pay first plaintiff's costs of motion for security for costs assessed on the ordinary basis up to 29 May 2009 and on the indemnity basis thereafter.
Legal Topics
Security for Costs, Costs, Offer of Compromise, Indemnity Costs
Civil Procedure Security for Costs Costs Offer of Compromise Indemnity Costs

Case Brief

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Parties

Tim Barr Pty Limited

First Plaintiff

Timothy James Barr

Second Plaintiff

Narui Gold Coast Pty Limited

Defendant

Procedural Posture

Application for Security for Costs / Consequential Orders as to Costs Following Judgment on Security for Costs Application

Legal Issues

  1. 1 Who should bear the costs of the defendant's unsuccessful security for costs application?
  2. 2 Whether indemnity costs should be ordered from a certain date due to defendant's refusal to accept an offer of compromise

Ratio Decidendi

The defendant was substantially unsuccessful in its security for costs application, having failed to obtain any order for security, and unreasonably refused a compromise offer that was at least as advantageous as what was ultimately achieved. Therefore, the defendant should pay the first plaintiff's costs of the motion, on the ordinary basis up to 29 May 2009 and on the indemnity basis thereafter.

Court Disposition

Defendant to pay first plaintiff's costs of motion for security for costs assessed on the ordinary basis up to 29 May 2009 and on the indemnity basis thereafter.

Orders

  • The defendant pay the first plaintiff's costs of the security for costs application determined on 18 June 2009.
  • Those costs be assessed on the ordinary basis up to 29 May 2009 and on the indemnity basis thereafter.