Holland v City of Botany Bay Council (No 2)

[2017] NSWSC 1327

Supreme Court

New South Wales

Medium Neutral Citation:

Holland v City of Botany Bay Council (No 2) [2017] NSWSC 1327

Hearing dates:

Written submissions dated 15 September 2017 and 19 September 2017

Date of orders:

03 October 2017

Decision date:

03 October 2017

Jurisdiction:

Common Law

Before:

Schmidt J

Decision:

By consent, Mrs Holland is ordered to bear the Council’s costs of the proceedings:

 

(1)   Assessed on the ordinary basis up to 2 June 2015; and

 

(2)   Assessed on an indemnity basis from 3 June 2015.

 All exhibits and subpoenaed material may be returned forthwith; any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined.

Catchwords:

COSTS – indemnity costs – consent orders

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Holland v City of Botany Bay Council [2017] NSWSC 1120

Category:

Costs

Parties:

Christina Holland (Plaintiff)
City of Botany Bay (Defendant)

Representation:

Counsel:
Mr M Daley (Plaintiff)
Mr D Kelly (Defendant)

  Solicitors:
Brydens (Plaintiff)
McCulloch and Buggy (Defendant)

File Number(s):

2014/174757

Publication restriction:

None

Judgment

1. On 24 August 2017, I dismissed Ms Holland’s claim, indicating that unless the parties approached to be heard on costs, I would make the usual costs order in favour of the Council: Holland v City of Botany Bay Council [2017] NSWSC 1120 at [247].

2. The Council sought an indemnity costs order in its favour, relying on an offer of compromise which it had made to Mrs Holland under r 20.26 of the Uniform Civil Procedure Rules 2005 (NSW) in June 2015. This offer proposed that there be judgment entered in its favour, with each party to bear its own costs, evidenced by Ms Dawes’ affidavit sworn 24 August 2017.

3. Following the service of the Council’s submissions of 14 September 2017, Mrs Holland’s solicitors advised that she did not oppose the Council’s application “as detailed in their written submissions”.

4. In those circumstances, by consent, I order that Mrs Holland bear the Council’s costs of the proceedings:

1. Assessed on the ordinary basis up to 2 June 2015; and

2. Assessed on an indemnity basis from 3 June 2015.

5. I also order that all exhibits and subpoenaed material may be returned forthwith; any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined.

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I certify that this and the ……

preceding pages are a true copy of

the reasons for judgment herein

of the Honourable Justice Schmidt

DATE: ………………………………………….

ASSOCIATE: ………………………………