123 259 932 Pty Ltd v Cessnock City Council (No 3)

The matter under consideration involved a dispute between 123 259 932 Pty Ltd, the plaintiff, and Cessnock City Council, the defendant. The plaintiff sought damages for alleged breaches of contract by the defendant. After a lengthy trial, the plaintiff was awarded nominal damages, a finding that the defendant had indeed breached the contract, but no further monetary compensation. The case was heard in the Supreme Court of New South Wales.

The legal issues that came before the court included the apportionment of costs between the parties, and whether any security for costs provided by the plaintiff should be released. Specifically, the court needed to determine whether the defendant was entitled to costs on an indemnity basis from a certain date, and if so, whether the plaintiff should be required to release the security for costs.

In its decision, the court ruled that both parties were to bear their own costs up until 1 September 2021. However, from that date onward, the plaintiff was to pay the defendant’s costs on an indemnity basis. The court found that the evidence provided did not sufficiently establish the quantum of the defendant’s costs on an indemnity basis from 2 September 2021. Consequently, it was not yet appropriate to order the release of the security for costs provided by the plaintiff. The court's rationale was based on the necessity for clear and complete evidence to make such a determination.

The final orders included that both parties bear their own costs up until 1 September 2021, and that the plaintiff pay the defendant’s costs on an indemnity basis from that date forward. Additionally, the court decided that the security for costs provided by the plaintiff would not be released until the defendant provided sufficient evidence to establish the quantum of their costs on an indemnity basis.