Perpetual Trustees Australia Ltd v Heperu Pty Ltd & Ors [No 3] [2010] NSWCA 3

Perpetual Trustees Australia Ltd v Heperu Pty Ltd & Ors [No 3] [2010] NSWCA 3

Neither party's extreme position on costs is accepted. The appellant was not entitled to indemnity costs, and some costs were unnecessarily incurred by both sides due to errors and omissions by both parties' advisers. Costs were ordered according to particular periods and actions, reflecting responsibility and reasonableness in incurring costs.

Parties
Appellant: Perpetual Trustees Australia Ltd; 1st Respondent: Heperu Pty Ltd; 2nd Respondent: Kirisi Holdings Pty Limited; 3rd Respondent: Barry Samuel Landa; 4th Respondent: Drymmoyne Administrative Services Pty Ltd
Jurisdiction
Australia
Judgment Date
09 February 2010
Procedural Posture
Appeal – Motion for Costs / Final Judgment on Costs After Motion
Outcome
Orders made as to apportionment and set-off of costs; no indemnity costs awarded; no order for costs after 30 November 2009.
Legal Topics
Costs
Civil Procedure Costs

Case Brief

Summary, issues, holding and outcome

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Parties

Perpetual Trustees Australia Ltd

Appellant

Heperu Pty Ltd

1st Respondent

Kirisi Holdings Pty Limited

2nd Respondent

Barry Samuel Landa

3rd Respondent

Drymmoyne Administrative Services Pty Ltd

4th Respondent

Procedural Posture

Appeal – Motion for Costs / Final Judgment on Costs After Motion

Legal Issues

  1. 1 How the costs of the motion of 20 May 2009 should be apportioned between the parties

Ratio Decidendi

Neither party's extreme position on costs is accepted. The appellant was not entitled to indemnity costs, and some costs were unnecessarily incurred by both sides due to errors and omissions by both parties' advisers. Costs were ordered according to particular periods and actions, reflecting responsibility and reasonableness in incurring costs.

Court Disposition

Orders made as to apportionment and set-off of costs; no indemnity costs awarded; no order for costs after 30 November 2009.

Orders

  • The respondents to pay the appellant's general costs of the motion of 20 May 2009 incurred after 7 September, other than the costs incurred in respect of the affidavit of Mr Bray of 10 November.
  • The appellant to pay the respondents' costs of preparing, settling, filing and serving the affidavit of Mr Bray of 10 November.