Green v Schneller

[2001] NSWSC 1215

CITATION:	Green v Schneller [2001] NSWSC 1215
FILE NUMBER(S):	SC 20386/94
HEARING DATE(S):	3 July 2001
JUDGMENT DATE:	3 July 2001
PARTIES :	Richard Green - Plaintiff Jennifer Schneller - Defendant
JUDGMENT OF:	Simpson J

COUNSEL :	R A Campbell - Plaintiff C Evatt - Defendant
SOLICITORS:	Harris & Company - Plaintiff Dennis & Company - Defendant
DECISION:	Each party to pay his and her own costs of the application

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SIMPSON J

3 July 2001

Richard GREEN v Jennifer SCHNELLER

Judgment

HER HONOUR :

1    On 19 June 2000 I delivered judgment in proceedings brought by the plaintiff, Richard Green, against the defendant, Jennifer Schneller. I awarded Mr Green damages of $20,000, he having succeeded in his claim for defamation.

2    As a consequence of that order, I also ordered Ms Schneller to pay Mr Green's costs.

3    On 21 July 2000, by notice of motion, Mr Green sought an order that the costs be paid on an indemnity basis and on 15 December I delivered a further judgment ordering that the costs be so assessed.

4    On 17 May 2001 Mr Green's solicitors served a bill of costs and on 22 June 2001 they filed a notice of motion seeking an order that the defendant, Ms Schneller, pay interest on the costs from the dates at which payment was made by Mr Green.

5    In argument today it was submitted that such an order should be made and that the rate should be the prevailing Supreme Court rate.

6    Through her counsel Ms Schneller has opposed the making of any order and has raised three matters in opposition. First, relating to the rate at which any order should be made; secondly, drawing attention to the delays in bringing the application; and thirdly, pointing out that there is no evidence as to the impact of the payment of costs by Mr Green upon his financial position or his business or other activities.

7    This is a matter in which I awarded indemnity costs, among other reasons because it seemed to me that Mr Green was entitled to a complete indemnity for his costs and I accept the argument put on his behalf today that unless interest is awarded on costs he will not receive a full indemnity.

8    There is evidence of the costs paid by Mr Green to his solicitors but I would make the observation, although this is a matter for the costs assessor, that the costs order I made is applicable to the proceedings in this Court and there were proceedings in the Local Court as well which were related but are not the subject of the order for costs that I made. As I said, that is a matter for the costs assessor.

9    To the extent that the costs were incurred in the proceedings in this court I am satisfied that in order to receive his indemnity interest should be awarded, but I am not prepared to order that interest be paid up to the present time having regard to the six months or more that has elapsed since I made the order for costs and, in particular, the order that they be paid on an indemnity basis.

10 I propose, therefore, to order that the defendant pay interest on the costs up to 30 December 2000 and thereafter there be no interest payable. I am also not satisfied, having regard to the evidence, that the rate should be that set out in the Supreme Court Rules. I am of the view that the rate should be determined by reference to commercial rates of interest as promulgated by somebody such as the Reserve Bank. Counsel have been unable to assist me in identifying an objective external measure and I will stand over making final orders until I can be informed about such a measure or rate of interest. The parties, if they can agree on such an interest, can prepare some short minutes reflecting the decision I have made and the rate, otherwise I will hear further from the parties during the course of the week.

11    I order that each party pay his and her own costs of the application.

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Last Modified: 05/19/2003