Ballard v Brookfield Australia Investments Ltd

In *Ballard v Brookfield Australia Investments Ltd*, the plaintiff, Ballard, sought to set aside or vary an earlier costs order made against them. The dispute arose from Ballard's failure to file submissions within the timeframe stipulated by a court order. Brookfield Australia Investments Ltd was the defendant. The matter was heard in the Court of Appeal of New South Wales, with Ward JA presiding.

The central legal issue before the Court of Appeal was whether Ballard's non-compliance with the court's order, specifically the delay in filing submissions, warranted an order for indemnity costs in favour of Brookfield. Alternatively, the court had to consider whether party and party costs were appropriate, and how any delay and its consequences should be factored into the assessment of those costs.

Ward JA determined that while Ballard's delay was a failure to comply with a court order, it did not reach the threshold of contumelious conduct required for an indemnity costs order. The judge reasoned that such orders are exceptional and reserved for serious disregard of court processes. Consequently, the court declined to award indemnity costs. Instead, costs were ordered on a party and party basis. The court noted that a costs assessor would be entitled to take the delay and its consequences into account when assessing the quantum of the party and party costs.