Total & Universal Pty Ltd v Kingsway Property Investments (No. 2) Pty Ltd [2007] NSWSC 581

Total & Universal Pty Ltd v Kingsway Property Investments (No. 2) Pty Ltd [2007] NSWSC 581

The plaintiff failed in the principal proceedings, so the defendant was entitled to its costs on the ordinary basis, but not indemnity costs because the plaintiff's persistence in its failed claims was not shown to be sufficiently unreasonable. The defendant/cross-claimant failed against RailCorp and showed no basis to deny the successful cross-defendant its ordinary costs; the correspondence relied on by RailCorp did not justify indemnity costs because it did not constitute a genuine compromise. RailCorp did not need to have been joined by the plaintiff, but it was predictable and closely related to the main claim that the defendant would join RailCorp, so the plaintiff's liability for...

Jurisdiction
Australia
Judgment Date
08 June 2007
Procedural Posture
Costs in Equity Proceedings Concerning Construction of a Contract for Sale of a Leasehold Interest and a Cross Claim / Post Judgment Costs Determination After Judgment Delivered on 15 December 2006
Outcome
Costs ordered; indemnity costs and proposed departures from ordinary costs consequences refused except for costs relating to the abandoned application against Mr Heseltine.
Legal Topics
['costs Follow the Event' 'indemnity Costs' 'calderbank Letters' 'offers of Compromise' 'non Party Costs Orders' 'cross Claim Costs' 'lease Rent Review' 'misleading and Deceptive Conduct']
['costs' 'civil Procedure' 'contract Law' 'property Law' 'trade Practices'] ['costs Follow the Event' 'indemnity Costs' 'calderbank Letters' 'offers of Compromise' 'non Party Costs Orders' 'cross Claim Costs' 'lease Rent Review' 'misleading and Deceptive Conduct']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Costs in Equity Proceedings Concerning Construction of a Contract for Sale of a Leasehold Interest and a Cross Claim / Post Judgment Costs Determination After Judgment Delivered on 15 December 2006

Legal Issues

  1. 1 ['Whether there should be a departure from the default rule that costs follow the event as between the plaintiff and defendant.' 'Whether the defendant was entitled to indemnity costs against the plaintiff after 24 February 2006.' 'Whether the cross-defendant was entitled to indemnity costs against the defendant/cross-claimant based on correspondence dated 21 October 2004 or 17 February 2006.' 'Whether the successful cross-defendant should be denied costs because of alleged conduct by RailCorp or its officer.' "Whether the plaintiff rather than the defendant should bear the cross-defendant's costs." 'Whether the defendant should pay costs relating to the abandoned application for a costs order against Mr Richard Heseltine.']

Ratio Decidendi

The plaintiff failed in the principal proceedings, so the defendant was entitled to its costs on the ordinary basis, but not indemnity costs because the plaintiff's persistence in its failed claims was not shown to be sufficiently unreasonable. The defendant/cross-claimant failed against RailCorp and showed no basis to deny the successful cross-defendant its ordinary costs; the correspondence relied on by RailCorp did not justify indemnity costs because it did not constitute a genuine compromise. RailCorp did not need to have been joined by the plaintiff, but it was predictable and closely related to the main claim that the defendant would join RailCorp, so the plaintiff's liability for...

Court Disposition

Costs ordered; indemnity costs and proposed departures from ordinary costs consequences refused except for costs relating to the abandoned application against Mr Heseltine.

Orders

  • ['Defendant to pay the costs of the Plaintiff, and of Mr Richard Heseltine, relating to the order sought in paragraph 3 of the Notice of Motion filed by the Defendant on 5 April 2007.' 'Defendant/Cross-Claimant to pay costs of the Cross-Defendant of the Cross-Claim.' 'Subject to Order 1, Plaintiff to pay costs of...