Fletcher Australia P/L v Savday P/L [2005] NSWSC 1320

Fletcher Australia P/L v Savday P/L [2005] NSWSC 1320

The discretionary factors favoured ordering interest on MPN Group's assessed costs: the costs were substantial, had been paid over a long period, the plaintiff was liable to make some payment and had made none, and there was no relevant prejudice from the application being brought after adoption of the referee's report. The fact that QBE paid the costs did not defeat the application because QBE was subrogated to MPN Group's claims. The delay before assessment was explained by settlement discussions and was not a reason to refuse relief. Interest was therefore ordered on costs allowed on assessment, from the dates those costs were paid, subject to cessation on payment or in light of any...

Jurisdiction
Australia
Judgment Date
25 November 2005
Procedural Posture
Application for Interest on Costs Under S 101(4) of the Civil Procedure Act 2005 (nsw) / Notice of Motion After an Order Adopting Referee's Reports and Ordering the Plaintiff to Pay the Cross Defendants' Costs
Outcome
Application granted; interest on costs ordered with qualifications, and the plaintiff ordered to pay the costs of the notice of motion.
Legal Topics
['interest on Costs' "referee's Report" 'assessment of Costs' 'subrogated Insurer' 'discretionary Costs Orders']
['practice and Procedure' 'costs'] ['interest on Costs' "referee's Report" 'assessment of Costs' 'subrogated Insurer' 'discretionary Costs Orders']

Case Brief

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Procedural Posture

Application for Interest on Costs Under S 101(4) of the Civil Procedure Act 2005 (nsw) / Notice of Motion After an Order Adopting Referee's Reports and Ordering the Plaintiff to Pay the Cross Defendants' Costs

Legal Issues

  1. 1 ["Whether the adoption of the referee's report and the earlier costs order precluded or weighed against a later application for interest on costs." "Whether interest on costs should be refused because the costs were paid by MPN Group's insurer rather than by MPN Group itself." 'Whether delay in applying for assessment of costs justified refusing interest on costs.' 'Whether the application should stand over until after assessment of costs.']

Ratio Decidendi

The discretionary factors favoured ordering interest on MPN Group's assessed costs: the costs were substantial, had been paid over a long period, the plaintiff was liable to make some payment and had made none, and there was no relevant prejudice from the application being brought after adoption of the referee's report. The fact that QBE paid the costs did not defeat the application because QBE was subrogated to MPN Group's claims. The delay before assessment was explained by settlement discussions and was not a reason to refuse relief. Interest was therefore ordered on costs allowed on assessment, from the dates those costs were paid, subject to cessation on payment or in light of any...

Court Disposition

Application granted; interest on costs ordered with qualifications, and the plaintiff ordered to pay the costs of the notice of motion.

Orders

  • ["The Plaintiff is to pay to the First Cross-Defendant to the Third Cross-Claim interest on the First Cross-Defendant's costs of the Third Cross-Claim, on such of those costs as are allowed on assessment." 'The interest is to be calculated at the rates prescribed in Schedule 5 to the Uniform Civil Procedure Rules...