Superb Build Pty Ltd v Petrosyan (No 2) [2023] NSWDC 198

Superb Build Pty Ltd v Petrosyan (No 2) [2023] NSWDC 198

Indemnity costs were refused because, although the plaintiff's caveat and some enforcement conduct were delinquent, that conduct was not relevant delinquency for this costs application; the 4 November 2022 letter did not represent a real compromise and did not foreshadow indemnity costs; and the plaintiff's opposition to the stay was not unreasonable because it was entitled to be heard on whether the defendants had shown irreparable prejudice. A lump sum costs order was refused because the defendants did not establish a sufficient basis to bypass the ordinary costs assessment process and the plaintiff was entitled to address assessment in the ordinary way.

Jurisdiction
Australia
Judgment Date
13 June 2023
Procedural Posture
Civil Costs Application by Notice of Motion / Determined on the Papers After Orders Staying Enforcement of Judgment; Defendants Sought Indemnity Costs and a Specified Gross Sum Costs Order
Outcome
The defendants' motion of 2 March 2023 was dismissed; the defendants were ordered to pay the plaintiff's costs of that motion on the ordinary basis; the defendants remained entitled to their costs of the 30 November 2022 motion on the ordinary basis.
Legal Topics
['party/party Costs' 'indemnity Costs' 'calderbank Offers' 'gross Sum Costs Orders' 'costs Discretion']
['costs' 'civil Procedure'] ['party/party Costs' 'indemnity Costs' 'calderbank Offers' 'gross Sum Costs Orders' 'costs Discretion']

Case Brief

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Procedural Posture

Civil Costs Application by Notice of Motion / Determined on the Papers After Orders Staying Enforcement of Judgment; Defendants Sought Indemnity Costs and a Specified Gross Sum Costs Order

Legal Issues

  1. 1 ["Whether the defendants' costs of the 30 November 2022 motion should be paid on an indemnity basis under r 42.5 of the Uniform Civil Procedure Rules 2005." "Whether the defendants' costs should be ordered as a specified gross sum under s 98(4)(c) of the Civil Procedure Act 2005 (NSW)." "Whether the plaintiff's conduct, including failure to accept the 4 November 2022 offer and enforcement steps, constituted relevant delinquency warranting indemnity costs."]

Ratio Decidendi

Indemnity costs were refused because, although the plaintiff's caveat and some enforcement conduct were delinquent, that conduct was not relevant delinquency for this costs application; the 4 November 2022 letter did not represent a real compromise and did not foreshadow indemnity costs; and the plaintiff's opposition to the stay was not unreasonable because it was entitled to be heard on whether the defendants had shown irreparable prejudice. A lump sum costs order was refused because the defendants did not establish a sufficient basis to bypass the ordinary costs assessment process and the plaintiff was entitled to address assessment in the ordinary way.

Court Disposition

The defendants' motion of 2 March 2023 was dismissed; the defendants were ordered to pay the plaintiff's costs of that motion on the ordinary basis; the defendants remained entitled to their costs of the 30 November 2022 motion on the ordinary basis.

Orders

  • ["The defendants' motion of 2 March 2023 is dismissed." "The defendants are to pay the plaintiff's costs of the motion of 2 March 2023 as agreed or assessed on the ordinary basis." 'For the avoidance of doubt, the defendants remain entitled to their costs of the 30 November 2022 motion, assessed on the ordinary...