Liew & Anor v Barthelmess & Ors (No.2)

District Court

New South Wales

Medium Neutral Citation:

Liew & Anor v Barthelmess & Ors (No.2) [2024] NSWDC 403

Hearing dates:

On the papers

Date of orders:

On the papers

Decision date:

09 September 2024

Jurisdiction:

Civil

Before:

Abadee DCJ

Decision:

See paragraph [46]

Catchwords:

COSTS – successful party’s application for indemnity costs – multiple offers of settlement, including offer prior to commencement of proceeding

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 36.16(3), 42.14, 42.15A

Cases Cited:

Calderbank v Calderbank [1975] 3 All ER 333

Commonwealth v Gretton [2008] NSWCA 117

Leichhardt Municipal Council v Green [2004] NSWCA 341

Liew & Anor v Barthelmess & Ors [2024] NSWDC 344

Texts Cited:

Nil

Category:

Costs

Parties:

Ms Liz Yuman Liew (First Plaintiff/First Cross-Defendant)
Ms Lihua Wu (Second Plaintiff/Second Cross-Defendant)
Mr Jonathan Joshua Barthelmess (First Defendant/First Cross-Claimant)
Ms Laurette Ruth Macsween (Second Defendant/Second Cross-Claimant)
Ms Prudence Gai Macsween (Third Defendant/Third Cross-Claimant)

Representation:

Counsel:
Ms A. Elizabeth (Defendants/Cross-Claimants)

Solicitors:
MJF Law (Defendants/Cross-Claimants)
JC Legal (First and Second Plaintiffs/Cross-Defendants)

File Number(s):

2023/00107792

Publication restriction:

Nil

REASONS FOR JUDGMENT

Introduction

1. I delivered reasons for judgment in this proceeding on 13 August 2024^[1] . The case featured an attempt by the purchasers of a luxury property at Darling Point to recover the monies they paid upon entry into three, interconnected contracts in November 2021. For their part, the vendors (as cross-claimants) sought to retain the monies ($400,000) paid to their agent and also sought an order for the balance of monies payable ($340,000) on the deposits. The contracts were terminated in March 2022. The purchasers commenced the proceeding on 3 April 2023. The Vendors filed their (original iteration of their) cross-claim on 10 May 2023.

   1. Liew & Anor v Barthelmess & Ors [2024] NSWDC 344

2. I found in the vendors’ favour and ordered the purchasers to pay the vendors the sum of $340,000, with interest.

3. On the issue of costs, at paragraph [183] of the judgment, I stated that although a claim for indemnity costs was identified in the cross-claim, the vendors had not, through their Counsel’s written or oral submissions, asked to be heard in support of any special costs order and ordered ^[2] that the purchasers pay the vendors’ costs on the ordinary basis.

   2. Order 5

4. By a notice of motion dated 26 August 2024, the vendors applied, pursuant to r 36.16(3) of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’) for a variation of that costs order that was made. They sought an order that the purchasers pay the vendors’ costs of the proceedings on an indemnity basis. As set out in the supporting affidavit, the application, more precisely, was an order for indemnity costs:

1. from 25 February 2023;

2. from 20 September 2023; or

3. from 25 June 2024.

5. The application is based upon the purchasers’ rejection of multiple settlement offers, including one before the commencement of the proceeding.

Evidence

6. Upon the Court’s receipt of the vendors’ application, I arranged, through my Associate, to convey to the parties…