Chateau Constructions (Aust) Ltd v Zepinic [No 7] - [2010] NSWSC 680

NEW SOUTH WALES SUPREME COURT

CITATION:
Chateau Constructions (Aust) Ltd v Zepinic & Anor [No 7] [2010] NSWSC 680

JURISDICTION:
Equity

FILE NUMBER(S):
4643/09

HEARING DATE(S):

JUDGMENT DATE:
24 June 2010

PARTIES:
Plaintiff: Chateau Constructions (Aust) Limited
First Defendant: Milla Zepinic
Second Defendant: Vito Zepinic

JUDGMENT OF:
Slattery J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable

COUNSEL:
Plaintiff: Mr B Ilkovski
Defendants: Dr Zepinic (self represented)

SOLICITORS:
Plaintiff: Toomey Pegg Drevikovsky Lawyers
Defendants: Dr Zepinic (self represented)

CATCHWORDS:
PROCEDURE
Costs
existing order for costs onthe ordinary basis
application for indemnity costs
conduct of unsuccessful parties does not warrant making an order for indemnity costs
application dismissed.

LEGISLATION CITED:

CATEGORY:
Consequential orders

CASES CITED:
Chateau Constructions (Aust) Limited v Zepinic & Anor [No. 3][2009] NSWSC 1373
Chateau Constructions (Aust) Ltd v Zepinic & Anor [No. 5] [2010] NSWSC 265
Degman Pty Limited (In liquidation) v Wright (No 2) [1983] 2 NSWLR 354
Latoudis v Casey (1990) 170 CLR 54
Oshlack v Richmond River Council (1998) 193 CLR 72
Re Wilcox; Venture Industries Pty Ltd (No. 2) (1996) 72 FCR 151
Baillieu Knight Frank (NSW) Pty Ltd v Ted Manny Real Estate Pty Ltd (1992) 30 NSWLR 359
Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd (No 2) [2009] NSWCA 12

TEXTS CITED:

DECISION:
I dismiss Chateau's application for indemnity costs after the 3rd of December 2009 in these proceedings.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

SLATTERY J

THURSDAY, 24 JUNE 2010

4643/09CHATEAU CONSTUCTIONS (AUST) LTD v MILLA ZEPINIC & VITO ZEPINIC [NO. 7]

JUDGMENT

HIS HONOUR: This is my seventh judgment in this matter. In my sixth judgment given on 21 May 2010 I found that I was not persuaded that as a result of my judgment on 8 April 2010 (Chateau Constructions (Aust) Ltd v Zepinic & Anor [No. 5] [2010] NSWSC 265) that costs of the proceedings should not follow the event in respect of the proceedings after 3 December 2009. I made a costs order in the plaintiff’s, Chateau’s favour on the ordinary basis in respect of the portion of the hearing after 3 December 2009. On the day my sixth judgment was given, 21 May 2010, Chateau applied for an order for costs on the indemnity basis. I allowed liberty to apply in relation to that question. I directed that the parties advance any written submissions on the issue of indemnity costs in accordance with the following timetable. Chateau was to file and serve its written submissions in support of its application for indemnity costs by 11 June 2010. Dr and Mrs Zepinic, the defendants, were required to file and serve any written submissions in opposition to Chateau’s claim for indemnity costs by 23 June 2010. The parties have filed submissions in accordance with this timetable.

Background

On 3 December 2009 the Court ordered that Dr and Mrs Zepinic pay Chateau’s costs of and incidental to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NSWSC 680
Decision Date: 24 JUNE 2010

CaseChat Overview and Summary

The case of Chateau Constructions (Aust) Ltd v Zepinic [No 7] was heard in the Supreme Court of Queensland. The dispute centred on the costs incurred during the proceedings, with Chateau Constructions (Aust) Ltd applying for indemnity costs against Zepinic, the unsuccessful party in the litigation. The application was made under the ordinary basis of costs and sought to recover the additional expenses incurred due to Zepinic's conduct during the case.

The primary legal issue the court had to address was whether the conduct of Zepinic warranted the granting of indemnity costs. Indemnity costs are an exceptional form of costs that go beyond the ordinary costs of litigation and are awarded when a party's conduct is considered vexatious, oppressive, or abusive. The court was tasked with evaluating the conduct of Zepinic to determine if it merited such an award.

In assessing the matter, the court considered the conduct of Zepinic throughout the proceedings. The evidence showed that while there were some issues with Zepinic's conduct, they did not reach the threshold required for an indemnity costs order. The court found that the conduct, although not ideal, did not warrant the imposition of indemnity costs. Consequently, the application for indemnity costs was dismissed, and the existing order for costs on the ordinary basis was upheld.

The court's decision was clear and concise, reflecting its view that while Zepinic's conduct was not exemplary, it did not justify the exceptional remedy of indemnity costs. The final orders confirmed the dismissal of the application and maintained the existing order for costs on the ordinary basis.

Orders