Sharjade Pty Ltd v RAAF (Landings) Ex-Servicemen Charitable Fund Pty Ltd [2008] NSWSC 1347

Sharjade Pty Ltd v RAAF (Landings) Ex-Servicemen Charitable Fund Pty Ltd [2008] NSWSC 1347

The questions of liability and quantum were not sufficiently self-contained to justify an immediate costs order; costs as between plaintiff and first defendant should await quantum hearing; second defendant entitled to costs on a party/party basis (not indemnity) as no justification to depart from usual order; email containing Calderbank offer was inadmissible as communication as a result of mediation; enforcement of costs to the second defendant stayed temporarily pending plaintiff notifying ASIC; interest ordered on second defendant's costs.

Jurisdiction
Australia
Judgment Date
19 December 2008
Procedural Posture
Civil (equity, Commercial List) / Post Liability Trial, Costs Applications Pending Quantum Hearing
Outcome
Costs as between plaintiff and first defendant stand over pending outcome of quantum hearing; costs against plaintiff in favour of second defendant ordered on party/party basis with interest; release of security for costs refused; indemnity costs refused; enforcement of costs order stayed until 19 February 2009.
Legal Topics
['costs Order Before Finalisation' 'security for Costs' 'release of Security for Costs' 'indemnity Costs' 'party/party Costs' 'interest on Costs' 'privilege and Mediation' 'without Prejudice Communications' 'waiver of Privilege' 'stay of Enforcement']
['civil Procedure' 'costs' 'contract Law' 'evidence' 'mediation'] ['costs Order Before Finalisation' 'security for Costs' 'release of Security for Costs' 'indemnity Costs' 'party/party Costs' 'interest on Costs' 'privilege and Mediation' 'without Prejudice Communications' 'waiver of Privilege' 'stay of Enforcement']

Case Brief

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Procedural Posture

Civil (equity, Commercial List) / Post Liability Trial, Costs Applications Pending Quantum Hearing

Legal Issues

  1. 1 ['Whether costs order should be made prior to quantum hearing given liability is determined' 'Whether security for costs should be released prior to completion of proceedings' 'Whether second defendant is entitled to costs, and whether on an indemnity or party/party basis' 'Admissibility and privilege status of communications during mediation for costs applications' 'Whether stay of enforcement of costs order should be granted' 'Whether interest should be ordered on the costs']

Ratio Decidendi

The questions of liability and quantum were not sufficiently self-contained to justify an immediate costs order; costs as between plaintiff and first defendant should await quantum hearing; second defendant entitled to costs on a party/party basis (not indemnity) as no justification to depart from usual order; email containing Calderbank offer was inadmissible as communication as a result of mediation; enforcement of costs to the second defendant stayed temporarily pending plaintiff notifying ASIC; interest ordered on second defendant's costs.

Court Disposition

Costs as between plaintiff and first defendant stand over pending outcome of quantum hearing; costs against plaintiff in favour of second defendant ordered on party/party basis with interest; release of security for costs refused; indemnity costs refused; enforcement of costs order stayed until 19 February 2009.

Orders

  • ['Costs as between plaintiff and first defendant to await quantum hearing outcome.' "Plaintiff's application for release of security for costs dismissed." "Plaintiff to pay second defendant's costs on a party/party basis, with interest calculated pursuant to para 14(b) of Mr Carter's affirmation of 14 November...