Namul Pty Ltd Can 149528914 v Milovan Stankovic (No 2)
[2013] NSWSC 262
•15 March 2013
Supreme Court
New South Wales
Medium Neutral Citation: Namul Pty Ltd CAN 149528914 v Milovan Stankovic (No 2) [2013] NSWSC 262 Hearing dates: 15 March 2013 Decision date: 15 March 2013 Jurisdiction: Equity Division - Duty List Before: Rein J Decision: Order in favour of the plaintiff for indemnity costs.
Catchwords: COSTS - Indemnity costs - Deliberate violation of the rights of a party - Disparagement of title - Allegations of fraud when no proper basis for the allegation Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: LJP Investments Pty Limited v Howard Chia Investments Pty Limited (1990) 24 NSWLR 499; (1990) 74 LGRA 290; (1991) Aust Torts Reports 81-070
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; (1993) 118 ALR 248; (1993) 28 IPR 561Category: Principal judgment Parties: Namul Pty Ltd (Plaintiff)
Milovan Stankovic (Defendant)Representation: Counsel: Mr Alexander (Plaintiff)
No appearance for the Defendant
Solicitors: McLaughlin & Riordan (Plaintiff)
In person (Defendant)
File Number(s): 2013/34311
ex tempore Judgment
REIN J: In this matter I gave judgment ex tempore on 14 February of this year. I ordered the defendant to pay the plaintiff's costs on the usual basis, but granted leave to the plaintiff to make an application for an alternative order in relation to costs if it wished to do so and I stood the matter over to today.
Today Mr Alexander, of counsel for the plaintiff, has appeared as he did at the hearing on behalf of the plaintiff. Mr Stankovic has not appeared, the matter having been called in and outside of Court. Mr Stankovic was in Court when the matter was fixed for today for this purpose.
The plaintiff puts its application for indemnity costs on two bases. The first is in relation to the conduct of Mr Stankovic, which is described in paragraphs 6 and 7 of the judgment, and which led to the plaintiff having to commence proceedings. The plaintiff says that the defendant acted in contumelious disregard of the rights of the plaintiff and forced the plaintiff to bring these proceedings. Mr Alexander relies on LJP Investments Pty Limited v Howard Chia Investments Pty Limited (1990) 24 NSWLR 499; (1990) 74 LGRA 290; (1991) Aust Torts Reports 81-070, a decision of Hodgson J, as his Honour then was. The headnote records the relevant principle as:
Where one party has deliberately violated a successful party's rights it may be appropriate to order that the costs of the latter should be taxed on a common-fund basis. (509E)
The common fund basis has been removed from the taxonomy of cost orders now in use in the Uniform Civil Procedure Rules 2005 (NSW), but it was a basis for costs higher than the usual basis although, I might add, lower than the indemnity basis. The principle however is the same.
The plaintiff did not make any claim for damages as a result of what was a trespass and, even more importantly, a disparagement of title. In my judgment I held that what the defendant did, not only by his entry on to the plaintiff's land, but by his affixing and publishing notes was to disparage the title of the plaintiff and, I think, on the approach taken in LJP Investments Pty Limited v Howard Chia Investments Pty Limited, the plaintiff is entitled to an order for indemnity costs.
There is another basis advanced, which is that the defendant persisted with a claim that the plaintiff had acted fraudulently when no proper basis for such an allegation was made out.
It has been held in cases such as Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; (1993) 118 ALR 248; (1993) 28 IPR 561 per Justice Sheppard that one of the bases for ordering indemnity costs is the making of allegations which ought never have been made in the course of proceedings and that is what the defendant has done here, in my view, warranting, as a separate ground, the making of an order in favour of the plaintiff for indemnity costs.
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Decision last updated: 27 March 2013
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