Macey v Macquarie Generation & HIS Engineering Pty Ltd - No 2

[2007] NSWDC 296

Pending Appeal:

District Court

CITATION:	Macey v Macquarie Generation & HIS Engineering Pty Ltd - No 2 [2007] NSWDC 296
HEARING DATE(S):	29 November 2007
EX TEMPORE JUDGMENT DATE:	29 November 2007
JUDGMENT OF:	Sidis DCJ
DECISION:	1. Plaintiff to pay the defendant’s costs of the proceedings against the defendant on an ordinary basis; 2. Defendant to pay the cross defendant’s costs on an ordinary basis; 3. Exhibits will be retained for 28 days.
CATCHWORDS:	Costs
PARTIES:	Jason MACEY MACQUARIE GENERATION HIS ENGINEERING PTY LTD
FILE NUMBER(S):	Newcastle 56 of 2006
COUNSEL:	Plainiff - C A W Hart Defendant/cross claimant - S F Routh Cross defendant - D Shoebridge
SOLICITORS:	Plaintiff - Bale Boshev Lawyers Defendant - Sparke Helmore Cross defendant - Fisher Cartwright Berriman

JUDGMENT

1 Reasons for judgment in this matter were published on 22 November 2007 and the proceedings adjourned to 29 November 2007 to deal with issues of costs.

2 The defendant seeks an order for indemnity costs against the plaintiff and seeks an order that the plaintiff pay the defendant’s costs of the cross claim. These applications appear to arise out of contractual arrangements between the defendant and the cross defendant and in my view they are of no relevance to the plaintiff’s situation.

3 As a result, in respect of the claim against Macquarie Generation, the order which I make is that the plaintiff is to pay the defendant’s costs of the proceedings against the defendant on an ordinary basis.

4 The cross defendant seeks costs of the cross claim, which was dismissed, on an ordinary basis up to 4 October 2007 and on an indemnity basis thereafter. This application is made in reliance upon an affidavit of Mr Sefton of 27 November 2007, setting out details of communications between the parties in the course of which various offers were made to the defendant in respect of the proceedings generally and in respect of the cross claim.

5 An offer to settle on a Calderbank basis was made in the sum of $30,000 inclusive of costs. I have no indication before me today of what those costs might have been, they being the difference between what is recovered from the plaintiff and the defendant’s actual costs. I am not in a position to determine whether that is a reasonable offer of settlement or whether it would have been unreasonable of the defendant to reject it.

6 I accept the argument that the cross defendant’s liability in costs arises out of its breach of contract namely, its failure to extend insurance cover to the defendant and in the circumstances it seems to me that costs on an indemnity basis are not warranted.

7 On the cross claim, the order which I make is that the defendant pay the cross defendant’s costs on an ordinary basis.

8 The exhibits will be retained for twenty eight days.

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