Sydney Attractions Group Pty Ltd v Frederick Schulman (No 3) [2013] NSWSC 1544

Sydney Attractions Group Pty Ltd v Frederick Schulman (No 3) [2013] NSWSC 1544

Given the mixture of success and failure for both parties and the separable unsuccessful issues raised by the defendant, costs should be apportioned: plaintiff to pay the defendant’s costs of the summons but only 30% of the costs of the cross-claim summons. The defendant's offer of compromise was valid but lacked genuine compromise and the plaintiff acted reasonably in refusing it, justifying 'ordering otherwise' such that indemnity costs are not awarded. Interest on apportioned costs is granted.

Jurisdiction
Australia
Judgment Date
24 October 2013
Procedural Posture
Civil / Post Trial (costs Determination)
Outcome
Plaintiff ordered to pay defendant’s costs of the summons and 30% of costs of the cross-claim summons; no indemnity costs awarded; interest to be paid on apportioned costs; orders to be stayed for 28 days; parties to draft final orders.
Legal Topics
['costs' 'offer of Compromise' 'indemnity Costs' 'interest on Costs' 'apportionment of Costs']
['equity' 'civil Procedure'] ['costs' 'offer of Compromise' 'indemnity Costs' 'interest on Costs' 'apportionment of Costs']

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Procedural Posture

Civil / Post Trial (costs Determination)

Legal Issues

  1. 1 ['Should costs be apportioned between the parties?' 'Is the defendant entitled to indemnity costs based on an offer of compromise?' 'Should interest be awarded on costs?']

Ratio Decidendi

Given the mixture of success and failure for both parties and the separable unsuccessful issues raised by the defendant, costs should be apportioned: plaintiff to pay the defendant’s costs of the summons but only 30% of the costs of the cross-claim summons. The defendant's offer of compromise was valid but lacked genuine compromise and the plaintiff acted reasonably in refusing it, justifying 'ordering otherwise' such that indemnity costs are not awarded. Interest on apportioned costs is granted.

Court Disposition

Plaintiff ordered to pay defendant’s costs of the summons and 30% of costs of the cross-claim summons; no indemnity costs awarded; interest to be paid on apportioned costs; orders to be stayed for 28 days; parties to draft final orders.

Orders

  • ['Plaintiff to pay defendant’s costs of the summons.' 'Plaintiff to pay 30% of defendant’s costs of the cross-claim summons.' 'No indemnity costs awarded to defendant.' 'Interest to be paid on apportioned costs as per s 101(4) Civil Procedure Act 2005.' 'Stay of execution for 28 days.' 'Plaintiff’s entitlement to...