NEW SOUTH WALES SUPREME COURT
CITATION:
Coates v Harbour Radio Pty Ltd & Anor [2010] NSWSC 796
JURISDICTION:
FILE NUMBER(S):
2004/20443
HEARING DATE(S):
29 March 2010
JUDGMENT DATE:
20 July 2010
PARTIES:
John Dowling Coates (Plaintiff)
Harbour Radio Pty Ltd (1st Defendant)
Alan Jones (2nd Defendant)
JUDGMENT OF:
Fullerton J
LOWER COURT JURISDICTION:
Not Applicable
LOWER COURT FILE NUMBER(S):
Not Applicable
LOWER COURT JUDICIAL OFFICER:
Not Applicable
COUNSEL:
B McClintock SC (Plaintiff)
ATS Dawson (Defendants)
SOLICITORS:
Kennedys (Plaintiff)
Banki Haddock Fiora (Defendants)
CATCHWORDS:
COSTS
whether relief sought is appropriately brought by an interlocutory process
indemnity principle
LEGISLATION CITED:
Associations Incorporation Act 1981 (Vic)
Civil Procedure Act 2005
Legal Profession Act 2004
CASES CITED:
Adams v London Improved Motor Coach Builders Ltd [1921] 1 KB 495
Angor Pty Ltd v Ilich Motor Company Pty Ltd (1992) 37 FCR 65
Australian Beverage Distributors v The Redrock Co [2008] NSWSC 114
Blair v Curran (1939) 62 CLR 464
Coates v Harbour Radio Pty Ltd & Anor [2008] NSWSC 292
Coshott v Woollahra Municipal Council [2008] NSWCA 176
Dyktynski v BHP Titanium Minerals PTY Ltd [2004] NSWCA 154; 60 NSWLR 203
Grundmann v Georgeson [2000] QCA 394
Halliday v High Performance Pty Ltd (in liq) [1993] HCA 13
Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691
Wentworth v Rogers (2006) 66 NSWLR 474
TEXTS CITED:
DECISION:
1. The defendants’ notice of motion is dismissed.
2. The defendants are to pay the plaintiff’s costs.
JUDGMENT:
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONFULLERTON J
20 JULY 2010
2004/20443 COATES v HARBOUR RADIO PTY LTD &
ANOR
JUDGMENT
HER HONOUR: By notice of motion dated 22 February 2010 the defendants seek relief in connection with an order made and entered on 12 September 2008 obliging them to pay the plaintiff’s costs consequent upon him succeeding in a defamation action that was heard and determined by Adams J on 4 April 2008 (Coates v Harbour Radio Pty Ltd & Anor [2008] NSWSC 292). The relief sought by motion includes a declaration that the indemnity principle applies to the costs order, an order permanently restraining the plaintiff from enforcing the costs order and an order that the proceedings on the costs assessment commenced in January 2010 be permanently stayed.
In written submissions filed in advance of the hearing Mr McClintock SC argued that the application is misconceived and should be dismissed on a number of alternate bases.
The first that the application is effectively an attack on a final order, in this case a final order entered by consent, and is therefore res judicata. While he accepted that a challenge to a final order may be brought by way of an appeal, or by exercise of the power granted by r 36.15 of the Uniform Civil Procedure Rules (UCPR) where it can be shown that the order was made “irregularly, illegally or against good faith” (none of which is alleged here), it was submitted that the relief sought here…
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- Case
- [2010] NSWSC 796
- Decision Date
CaseChat Overview and Summary
The court examined whether Coates was entitled to interest on the costs that were paid by the Australian Olympic Committee (AOC) on his behalf. Coates argued that the defendants should pay interest on the costs from the date of the order until payment. The defendants contended that the resolution should be read restrictively, limiting it to awards of damages or settlements involving damages, and excluding costs. They argued that Coates was only entitled to enforce the costs order to the extent of the amount he was obligated to repay the AOC.
The court found that the resolution was not ambiguous and that the defendants were indeed bound to pay the costs on an indemnity basis. However, the court held that the relief sought for interest on costs was not appropriately brought by an interlocutory process. The court also considered the indemnity principle, concluding that it did not apply to the interest on costs claim. The court found that Coates was not entitled to interest on the costs paid by the AOC.
In conclusion, the court dismissed the plaintiff's motion for interest on the costs. The defendants were not required to pay interest on the costs paid by the AOC.
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Background
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