Manfate Pty Ltd v Krahe and Krahe (No 2)

[2016] NSWDC 71

District Court

New South Wales

Medium Neutral Citation:

Manfate Pty Ltd v Krahe & Krahe (No 2) [2016] NSWDC 71

Hearing dates:

17 March 2016

Date of orders:

17 March 2016

Decision date:

17 March 2016

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

(1) Defendants to pay the plaintiff's costs on the ordinary basis until 24 February 2016

 

(2) Defendants to pay the plaintiff's costs on an indemnity basis from 25 February 2016

 (3) Defendants to pay the plaintiff's costs on an indemnity basis for all costs incurred by the plaintiff in relation to the affidavits served by the defendants from Ms Virtue and Mr Hammond sworn on 15 October 2015, including the preparation of any necessary affidavits from witnesses who were not ultimately called in the proceedings by the plaintiff

Catchwords:

COSTS – Plaintiff’s offer of compromise bettered by judgment for plaintiff – Application for indemnity costs in relation to costs of meeting affidavits served by defendant on issue which was not pursued - Affidavits expanded upon evidence unnecessarily and were only peripheral to the real issues joined between the parties

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Category:

Costs

Parties:

Manfate Pty Ltd (Plaintiff)
Peter Krahe (First Defendant)
Paula Krahe (Second Defendant)

Representation:

Counsel:
Ms J Steel (Plaintiff)
Mr P Reynolds (Defendants)

  Solicitors:
Colins Biggers & Paisley (Plaintiff)   
Clifton Legal (Defendants)

File Number(s):

2015/69524

Publication restriction:

No

Judgment

1. HIS HONOUR: This is the twenty second year in which I have intoned the words that nothing excites the zeal, the ardour and the passion of members of the legal profession more than an argument about costs. Lest this matter go on for another day and further costs be incurred, I shall be brief.

2. It is clear that the plaintiff made an offer of compromise complying with the Rules on 24 February 2016. That offer was open for seven days. It could be accepted at any time prior to the close of business on Tuesday 1 March 2016. It was not accepted. Rather, on 4 March a counter proposal was made by the defendants. Suffice to say that the offer of compromise by the plaintiff was that there be judgment for the plaintiff against the defendants for $35,000. The offer of compromise says nothing about costs and therefore if the offer had been accepted, costs would be payable as provided for by the Rules. It is not necessary for me to cite them. Suffice to say that the plaintiff has recovered a judgment in excess of $100,000. The offer has certainly been bettered, and substantially bettered. Therefore the Rules relating to offers of compromise should be followed.

3. The plaintiff also seeks an order that the defendants pay the plaintiff's costs on an indemnity basis for all costs incurred by the plaintiff in relation to affidavits served by the defendants sworn on 15 October 2015, including the costs of the plaintiff in preparing an affidavit of Mr Tom Murphy on 9 February 2016. This was not exhibit B but a further affidavit replying not to the evidence served from Mr and Mrs Krahe, but rather the evidence served from a Ms Virtue and a Mr Hammond. There are also affidavits from three others which dealt with the evidence of those two witnesses proposed to be called by the defendants. The issues raised by them were very wide. Ultimately they were not pursued.

4. If they had have been pursued, this case would have gone for much longer than it has. All told, it took most of the first day of the Armidale sittings, Monday 7 March, and it proceeded before the Court until it was adjourned at the morning tea adjournment on the Thursday so that I could deal with the other matter in the list in which the plaintiff was in custody. That required me to deal with the matter that day because that was the second day on which the plaintiff had been brought from Tamworth Gaol to give evidence in the Armidale District Court. At the morning tea adjournment on Thursday 10 March I stood this matter over to Sydney on Tuesday 15 March and the matter has been before the Court until this time, which is 4.55pm on St Patrick's Day.

5. Section 56 of the Civil Procedure Act 2005 provides in subs (1) that the overriding purpose of the Act and of the rules of Court in their application to civil proceedings is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. It is not in the interests of the Court or litigants that issues be taken which expand evidence unnecessarily and are only peripheral to the real issues joined between the parties. I accede to the submissions that have been put to me by the plaintiff concerning the affidavits to which I have just referred.

6. For those reasons I make the following orders:

1. I order the defendants to pay the plaintiff's costs on the ordinary basis until 24 February 2016.

2. I order the defendants to pay the plaintiff's costs on an indemnity basis from 25 February 2016.

3. I order the defendants to pay the plaintiff's costs on an indemnity basis for all costs incurred by the plaintiff in relation to the affidavits served by the defendants from Ms Virtue and Mr Hammond sworn on 15 October 2015, including the preparation of any necessary affidavits from witnesses who were not ultimately called in the proceedings by the plaintiff.

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Decision last updated: 11 May 2016