O.R. Smee Pty Ltd (in liquidation) v Calkin (Costs)

O.R. Smee Pty Ltd, in liquidation, brought an action against Calkin, seeking a declaration regarding property interests and associated costs. The dispute centred on the determination of costs following a trial where the defendant initially contested the matter before effectively surrendering. The case was heard by the Supreme Court of New South Wales.

The legal issue before the court was whether an order for usual costs should be made under rule 42.1 of the Uniform Civil Procedure Rules 2005 (NSW). The plaintiff argued that despite the defendant's early resistance, the ultimate surrender warranted a usual costs order, while the defendant contended that costs should be assessed more conservatively given the circumstances of the surrender.

The court considered the provisions of rule 42.1, which allows for an order for usual costs when the defendant does not make an effective offer to compromise. The court observed that the defendant's surrender effectively conceded the plaintiff's position, thus meeting the criteria for a usual costs order. The court found that the defendant's early resistance did not negate the subsequent surrender, which was decisive in the plaintiff's favour. Consequently, the court granted the plaintiff's application for usual costs.

In summary, the court held that despite the defendant's initial contest, the effective surrender resulted in the plaintiff being entitled to usual costs under rule 42.1 of the UCPR. The defendant was ordered to pay the plaintiff's costs of the proceeding in accordance with the usual costs order.