Legal Research
Cases
Gilsan v Optus [No 4]

Gilsan v Optus [No 4]

Case [2005] NSWSC 1073 14 October 2005

No judgment structure available for this case.

Type to search within this case.

CITATION:
Gilsan v Optus [No 4] [2005] NSWSC 1073

HEARING DATE(S): 14 October 2005

JUDGMENT DATE :

14 October 2005

JUDGMENT OF:
McDougall J at 1

DECISION:
See para [41] of judgment

CATCHWORDS:
COSTS - apportionment - whether apportionment should be made reflecting success and failure of parties on particular issues - whether result of cross-claim should be included in apportionment - whether results of subsequent judgments in proceedings should be reflected in apportionment - indemnity costs - whether indemnity costs should be awarded - whether oral Calderbank offer effective - whether subsequent judgments would interrupt effect of indemnity costs - no question of principle

LEGISLATION CITED:
Civil Procedure Act 2005
Supreme Court Act 1970
Supreme Court Rules
Uniform Civil Procedure Rules 2005

CASES CITED:
NRMA Limited v Morgan (No 3) (1999) NSWSC 768

PARTIES:
Gilsan (International) Limited (Plaintiff)
Optus Networks Pty Limited (Defendant)

FILE NUMBER(S):
SC 50056/02

COUNSEL:
F Kunc (Plaintiff)
I M Jackman SC (Defendant)

SOLICITORS:
Gadens (Plaintiff)
Gilbert & Tobin (Defendant)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

McDOUGALL J

Friday 14 October 2005 Ex tempore (revised 17 October 2005)

OPTUS NETWORKS PTY LIMITED [NO 4]

JUDGMENT

1 HIS HONOUR: I have dealt with the issues in these proceedings in my three earlier judgments: Gilsan v Optus [2004] NSWSC 1077; Gilsan v Optus [No 2] [2005] NSWSC 38; and Gilsan v Optus [No 3] [2005] NSWSC 518. The resolution of the issues through that somewhat tedious process has resulted in the entry of judgment in favour of Gilsan in the sum of USD10.026 million. This judgment deals with the question of costs.

2 The parties suggested that there were, in substance, three matters to be dealt with. The first was the question of the costs of Gilsan's claim. Included in that is the question whether there should be any apportionment of those costs to reflect among other things success and failure on various issues. The second question within that is whether, and if so for what period, Gilsan should have indemnity costs.

3 The second matter related to the costs of the cross-claim. In this context, it is necessary to bear in mind that the cross-claim was relied upon (and to an extent succeeded) as a defence by way of set-off.

4 The third matter related to the impact, on the overall view to which I might come on costs, of the second and third judgments and the parties' relative measures of success and failure under them.

5 I take the relevant principles as to costs to be as summarised by Giles J in NRMA Limited v Morgan (No 3) (1999) NSWSC 768 at paras [23] to [25]. For convenience, I set those paragraphs out:

“[23] By s76 of the Supreme Court Act costs are in the discretion of the Court. The discretion is a judicial discretion, to be exercised on proper grounds and not at whim. The starting-point is prescribed by Pt52 r11 of…

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.

Continue reading Gilsan v Optus [No 4]

Details

AGLC: Gilsan v Optus [No 4] [2005] NSWSC 1073
Case: [2005] NSWSC 1073
Decision Date: 14 October 2005

CaseChat Overview and Summary

The matter involved a dispute between Gilsan and Optus, with Gilsan bringing a claim for copyright infringement and Optus defending the claim. The dispute was before the Federal Court of Australia. The case reached the court on the issue of costs apportionment and indemnity costs.

The central legal issues addressed by the court involved whether the costs apportionment should reflect the success and failure of the parties on particular issues, whether the results of cross-claims and subsequent judgments should be considered in the apportionment, and whether indemnity costs should be awarded. The court also examined whether an oral Calderbank offer was effective and if subsequent judgments would interrupt the effect of the indemnity costs.

The court ruled that the apportionment of costs should reflect the parties' success and failure on specific issues, and that the results of cross-claims and subsequent judgments should be included in the apportionment. The court held that indemnity costs should be awarded based on an oral Calderbank offer, but noted that subsequent judgments would not interrupt the effect of the indemnity costs. The court found no question of principle in the case.

The court ordered that the costs apportionment would be made in accordance with the principles outlined, with specific reference to the success and failure of the parties on particular issues, and the inclusion of cross-claims and subsequent judgments in the apportionment. The court also awarded indemnity costs based on the effective Calderbank offer, ensuring that subsequent judgments would not affect the indemnity costs.

Orders