Lynch v Bredbo Pty Ltd (No 2) - [2025] NSWDC 125

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Lynch v Bredbo Pty Ltd (No 2) [2025] NSWDC 125
Hearing dates: On the papers
Date of orders: 14 April 2025
Decision date: 14 April 2025
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
Pursuant to s 98 of the Civil Procedure Act 2005 (NSW), the second defendant/cross-claimant, Mr Streeter, is to pay the costs of the proceedings incurred by the cross-defendant, IAL, on an indemnity basis, including the costs (if any) payable by IAL consequent upon the consent order made on 18 October 2024.

Catchwords:
COSTS – application for indemnity costs for the whole of the proceedings - departing from the general rule that costs follow the event - conduct of the parties - whether the second defendant/cross-claimant's fraud justifies the award of indemnity costs for the whole of the proceedings

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98

Cases Cited:
Akhtar & Gaber (No. 2) [2018] FamCAFC 176
Baillieu v Knight Frank (NSW) Pty Ltd v Ted Manny Real Estate Pty Ltd (1992) 30 NSWLR 359
BCEG International (Australia) Pty Ltd v Xiao (No 3) [2022] NSWSC 1221
Calderbank v Calderbank [1975] 3 All ER 333; [1975] 3 WLR 586
Currie v Currie (No 3) [2018] WASC 306
Fang v Sun (No 2) [2014] NSWSC 1194
Foundas v Arambatzis (No 4) [2023] NSWSC 1648
Foundas v Arambatzis (No 6) [2024] NSWCA 231
Liu v Lam (No 2) [2025] NSWSC 264
Lynch v Bredbo Pty Ltd [2025] NSWDC 54
RinRim Pty Ltd v Deutsche Bank AG [2017] NSWCA 169
Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189
Walker v Citygroup Global Markets Pty Ltd [2005] FCA 1866

Texts Cited:
G E Dal Pont, Law of Costs (5th ed, 2021, LexisNexis), at [16.71]

Category: Costs
Parties: Mark Geoffrey Streeter (Cross-Claimant)
Insurance Australia Limited (Cross-Defendant)
Representation:
Counsel:
Mr C Freeman (Cross-Claimant)
Mr H Neal (Cross-Defendant)
Solicitors:
Williamson Barwick (Cross-Claimant)
Meridian Lawyers (Cross-Defendant)

File Number(s): 2023/00144409
Publication restriction: Nil

Judgment

This is an application by the cross-defendant (“IAL”) for payment of its costs of these proceedings, on an indemnity basis, by the defendant/cross-claimant (“Mr Streeter”) following judgment being given by me in IAL’s favour (Lynch v Bredbo Pty Ltd [2025] NSWDC 54).
The parties have provided written submissions so that the issue of costs may be determined “on the papers”.
IAL’s application for indemnity costs is brought on two bases:

Mr Streeter, the unsuccessful party, falsely and deliberately concocted evidence and/or unnecessarily prolonged a hearing with deliberately false allegations of fact.

Alternatively, IAL relies upon an Offer of Compromise made to Mr Streeter’s legal representatives under cover of a letter containing a Calderbank offer (Calderbank v Calderbank [1975] 3 All ER 333; [1975] 3 WLR 586).

Findings of fraud and indemnity costs

The Court’s discretion to award costs in accordance with s 98 of the Civil Procedure Act 2005 (NSW) is broad in nature, although it must be exercised judiciously.
This is particularly the case where a…

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.

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Details

Case: [2025] NSWDC 125
Decision Date: 14 April 2025

CaseChat Overview and Summary

The case of Lynch v Bredbo Pty Ltd (No 2) involves a dispute concerning the allocation of costs in proceedings brought by IAL against Bredbo Pty Ltd and another individual, Mr Streeter. The dispute ultimately reached the court regarding the application for indemnity costs for the entirety of the proceedings, a departure from the usual rule that costs follow the event. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the conduct of Mr Streeter, specifically his fraud, warranted an order for indemnity costs for the entire proceedings. Indemnity costs are an exceptional remedy, typically awarded in cases of reprehensible conduct. The court had to weigh the conduct of Mr Streeter against the general principles governing costs in litigation, particularly whether his fraudulent actions justified such a departure from the usual cost rules.

In considering the application, the court noted the significant fraud committed by Mr Streeter, which included misrepresentations and deceit that led to the proceedings. The court concluded that his conduct was sufficiently egregious to warrant the exceptional remedy of indemnity costs. The court found that the award of indemnity costs was necessary to ensure that IAL, the innocent party, was not left to bear the burden of the costs resulting from Mr Streeter's fraudulent actions. Consequently, the court ordered that Mr Streeter pay the costs of the proceedings incurred by IAL on an indemnity basis, including any costs arising from a consent order made previously.

The final order mandates that Mr Streeter is to pay the costs of the proceedings incurred by IAL, on an indemnity basis, pursuant to section 98 of the Civil Procedure Act 2005 (NSW). This includes any costs payable by IAL as a result of the consent order made on 18 October 2024.

Orders

Orders of the court

Pursuant to s 98 of the Civil Procedure Act 2005 (NSW), the second defendant/cross-claimant, Mr Streeter, is to pay the costs of the proceedings incurred by the cross-defendant, IAL, on an indemnity basis, including the costs (if any) payable by IAL consequent upon the consent order made on 18 October 2024.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Lynch v Bredbo Pty Ltd (No 2) [2025] NSWDC 125
Hearing dates:	On the papers
Date of orders:	14 April 2025
Decision date:	14 April 2025
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	Pursuant to s 98 of the Civil Procedure Act 2005 (NSW), the second defendant/cross-claimant, Mr Streeter, is to pay the costs of the proceedings incurred by the cross-defendant, IAL, on an indemnity basis, including the costs (if any) payable by IAL consequent upon the consent order made on 18 October 2024.
Catchwords:	COSTS – application for indemnity costs for the whole of the proceedings - departing from the general rule that costs follow the event - conduct of the parties - whether the second defendant/cross-claimant's fraud justifies the award of indemnity costs for the whole of the proceedings
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 98
Cases Cited:	Akhtar & Gaber (No. 2) [2018] FamCAFC 176 Baillieu v Knight Frank (NSW) Pty Ltd v Ted Manny Real Estate Pty Ltd (1992) 30 NSWLR 359 BCEG International (Australia) Pty Ltd v Xiao (No 3) [2022] NSWSC 1221 Calderbank v Calderbank [1975] 3 All ER 333; [1975] 3 WLR 586 Currie v Currie (No 3) [2018] WASC 306 Fang v Sun (No 2) [2014] NSWSC 1194 Foundas v Arambatzis (No 4) [2023] NSWSC 1648 Foundas v Arambatzis (No 6) [2024] NSWCA 231 Liu v Lam (No 2) [2025] NSWSC 264 Lynch v Bredbo Pty Ltd [2025] NSWDC 54 RinRim Pty Ltd v Deutsche Bank AG [2017] NSWCA 169 Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189 Walker v Citygroup Global Markets Pty Ltd [2005] FCA 1866
Texts Cited:	G E Dal Pont, Law of Costs (5th ed, 2021, LexisNexis), at [16.71]
Category:	Costs
Parties:	Mark Geoffrey Streeter (Cross-Claimant) Insurance Australia Limited (Cross-Defendant)
Representation:	Counsel: Mr C Freeman (Cross-Claimant) Mr H Neal (Cross-Defendant) Solicitors: Williamson Barwick (Cross-Claimant) Meridian Lawyers (Cross-Defendant)
File Number(s):	2023/00144409
Publication restriction:	Nil