PLAZA WEST PTY LIMITED v SIMON’S EARTHWORKS (NSW) PTY LIMITED (NO 2) [2010] NSWSC 1496

PLAZA WEST PTY LIMITED v SIMON’S EARTHWORKS (NSW) PTY LIMITED (NO 2) [2010] NSWSC 1496

Despite the conduct of the proceedings and late discovery of key (fraudulent) documents, the circumstances do not justify indemnity costs—costs are to be on a party-party basis.

Parties
Plaintiff: Plaza West Pty Limited; First Defendant: Simon's Earthworks (NSW) Pty Limited; Second Defendant: Simon Emerzidis
Jurisdiction
Australia
Judgment Date
16 December 2010
Procedural Posture
Equity/civil / Judgment and Consequential Orders
Outcome
Judgment for the plaintiff on the principal claim; judgment for the cross-claimant in minor sum; costs orders made on party-party basis; certain security for costs released; freezing orders continued.
Legal Topics
Costs, Fraud, Indemnity Costs, Party Party Costs, Security for Costs, Freezing Order
Civil Procedure Equity Costs Fraud Indemnity Costs Party Party Costs Security for Costs Freezing Order

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Parties

Plaza West Pty Limited

Plaintiff

Simon's Earthworks (NSW) Pty Limited

First Defendant

Simon Emerzidis

Second Defendant

Procedural Posture

Equity/civil / Judgment and Consequential Orders

Legal Issues

  1. 1 Whether costs should be awarded on an indemnity basis on the principal claim or cross-claim
  2. 2 Whether the conduct of the proceedings, particularly discovery and late evidence production, warrants special costs order

Ratio Decidendi

Despite the conduct of the proceedings and late discovery of key (fraudulent) documents, the circumstances do not justify indemnity costs—costs are to be on a party-party basis.

Court Disposition

Judgment for the plaintiff on the principal claim; judgment for the cross-claimant in minor sum; costs orders made on party-party basis; certain security for costs released; freezing orders continued.

Orders

  • Judgment for plaintiff against the first and second defendant for $2,460,058.00 exclusive of GST.
  • Judgment for cross-claimant against cross-defendant for $1,200.00 exclusive of GST; cross-claim otherwise dismissed.