Tellamist Pty Ltd v Port Stephens Shire Council & Anor [2003] NSWSC 317

Tellamist Pty Ltd v Port Stephens Shire Council & Anor [2003] NSWSC 317

The plaintiff was entitled to interest despite retaining land that had increased in value, because entitlement to interest on damages for tortious injury to an asset is not displaced merely by retention and appreciation of the asset. However, the unexplained delay between 1 September 1997 and 28 February 2002 should be excluded from the interest calculation. On costs, although indemnity costs for the whole period to 21 February 2003 were not justified, the defendants were to pay on an indemnity basis the plaintiff's costs thrown away by the abandonment of the Defences and Cross-Claim, because there was no proper basis for those claims at that time or before.

Jurisdiction
Australia
Judgment Date
16 April 2003
Procedural Posture
Application for Interest and Costs in Trespass Proceedings / Judgment on Interest and Costs Consequent Upon Reasons for Judgment Delivered on 3 April 2003
Outcome
Judgment entered for the plaintiff against the first defendant in the amount of $686,942 and against the second defendant in the amount of $661,942; interest awarded in the amount of $296,942; costs thrown away by abandonment of the Defences and Cross-Claim to be paid on an indemnity basis, otherwise on a...
Legal Topics
['interest on Judgment' 'trespass to Land' 'diminution in Value of Land' 'delay in Proceedings' 'indemnity Costs' 'abandonment of Defences and Cross Claim']
['equity' 'tort' 'civil Procedure' 'costs'] ['interest on Judgment' 'trespass to Land' 'diminution in Value of Land' 'delay in Proceedings' 'indemnity Costs' 'abandonment of Defences and Cross Claim']

Case Brief

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Procedural Posture

Application for Interest and Costs in Trespass Proceedings / Judgment on Interest and Costs Consequent Upon Reasons for Judgment Delivered on 3 April 2003

Legal Issues

  1. 1 ['Whether interest should be awarded on judgment when the asset damaged by trespasses was retained by the plaintiff and increased in value.' 'Whether the period of unexplained delay between late 1997 and early 2002 should be included in the interest calculation.' "Whether the defendants should pay the plaintiff's costs on an indemnity basis because they abandoned their Defences and Cross-Claim on 21 February 2003."]

Ratio Decidendi

The plaintiff was entitled to interest despite retaining land that had increased in value, because entitlement to interest on damages for tortious injury to an asset is not displaced merely by retention and appreciation of the asset. However, the unexplained delay between 1 September 1997 and 28 February 2002 should be excluded from the interest calculation. On costs, although indemnity costs for the whole period to 21 February 2003 were not justified, the defendants were to pay on an indemnity basis the plaintiff's costs thrown away by the abandonment of the Defences and Cross-Claim, because there was no proper basis for those claims at that time or before.

Court Disposition

Judgment entered for the plaintiff against the first defendant in the amount of $686,942 and against the second defendant in the amount of $661,942; interest awarded in the amount of $296,942; costs thrown away by abandonment of the Defences and Cross-Claim to be paid on an indemnity basis, otherwise on a...

Orders

  • ['Judgment for the plaintiff against the first defendant in the amount of $686,942.' 'Judgment for the plaintiff against the second defendant in the amount of $661,942.' "The defendants are to pay the plaintiff's costs that were thrown away by the abandonment of the Defences and Cross-Claim on 21 February 2003 on an...