Mersal v Georges River Council (No 2)

Mersal v Georges River Council (No 2) involved the plaintiff seeking costs in a dispute with the defendant Council, as well as a cross-claim against MLC, which was ultimately unsuccessful. The case was heard in the Supreme Court of New South Wales. The primary issues for the court were whether the plaintiff should be liable for the costs of the Council and MLC, whether the cross-claimant should bear the costs of the cross-defendants, and whether the court should exercise its discretion to make costs orders despite the general rule that costs follow the event.

The court examined the principles surrounding offers of compromise and Claderbank offers, as well as the statutory authority provided by the Civil Procedure Act 2005 (NSW) s 98(1) for the court to make costs orders at its discretion. The court concluded that the plaintiff should be held responsible for the costs of the Council and MLC from 22 July 2021 on an indemnity basis, and for the costs of the cross-claim on the same basis. Additionally, the cross-claimant was to pay the costs of the Council and the AHIGS on the ordinary basis up to certain dates and on the indemnity basis thereafter. The court's reasoning was based on the failure of the plaintiff's claim and the unsuccessful nature of the cross-claim, which justified the imposition of costs against the plaintiff and the cross-claimant.

The final orders of the court required the plaintiff to pay the costs of the Council and MLC from 22 July 2021 on an indemnity basis, and the costs of the cross-claim on the same basis. The cross-claimant, MLC, was to pay the costs of the Council and AHIGS on the ordinary basis up to specified dates, and on the indemnity basis thereafter. These orders reflected the court's assessment of the parties' responsibility for costs, taking into account the unsuccessful outcomes of the plaintiff's claim and the cross-claim.