Overdean Developments Pty Ltd v Garslev Holdings Pty Ltd (No 4) - [2022] NSWSC 24

Supreme Court

New South Wales

Medium Neutral Citation: Overdean Developments Pty Ltd v Garslev Holdings Pty Ltd (No 4) [2022] NSWSC 24
Hearing dates: On the papers
Date of orders: 20 January 2022
Decision date: 20 January 2022
Jurisdiction: Equity - Expedition List
Before: Williams J
Decision:
See paragraph [82].

Catchwords:
COSTS – whether costs should follow the overall event or whether separate costs orders should be made in relation to specific issues – where unsuccessful defendants/cross-claimants contend that costs outcomes of individual issues are so complex that no costs order should be made at this stage, or at all – where plaintiffs contend that the one successful defendant should be ordered (together with the unsuccessful defendants) to pay the plaintiffs’ costs and the plaintiffs should not be ordered to pay the successful defendant’s costs - held that costs should follow the event of the plaintiffs’ successful claims and successful defence of the cross-claims, but the costs order in favour of the plaintiffs should be made against the unsuccessful defendants only – held further that the plaintiff should pay the costs of the successful defendant.
COSTS – INDEMNITY BASIS - whether unsuccessful defendants should pay plaintiffs’ costs on ordinary or indemnity basis having regard to their conduct that gave rise to the proceedings, the manner in which they conducted the proceedings, or a Calderbank offer – where all parties’ conduct of the proceedings was unsatisfactory – where unsuccessful defendants’ unsatisfactory conduct of the proceedings did not increase costs incurred by plaintiffs – where Calderbank offer made to all defendants and not capable of acceptance by unsuccessful defendants only - held that costs payable on the ordinary basis.
PRACTICE AND PROCEDURE – informal application for stay of execution of judgment and orders (including costs orders) pending appeal – application dismissed – no question of principle.

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56, 98
Uniform Civil Procedure Rules 2005 (NSW), r 36.17, Pt 42

Cases Cited:
Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333; [2019] HCA 29
Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd [2021] NSWSC 1374
Calderbank v Calderbank [1975] 3 All ER 333; [1975] 3 WLR 586
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Overdean Developments Pty Ltd v Garslev Holdings Pty Ltd (Supreme Court of New South Wales, Sackar J, 28 April 2020)
Overdean Developments Pty Ltd v Garslev Holdings Pty Ltd (No. 2) [2020] NSWSC 745
Overdean Developments Pty Ltd v Garslev Holdings Pty Ltd (No. 3) [2021] NSWSC 1482
Taheri v Vitek [2013] NSWCA 438
Vieria v O’Shea (No. 2) [2012] NSWCA 121
Ziegler as trustee for the Doris Gayst Testamentary Trust v CenricProeprty Group Pty Ltd [2020] NSWCA 85

Texts Cited:
N/A

Category: Costs
Parties: Overdean Developments Pty Ltd as trustee of the Dean Super Fund (First Plaintiff/First Cross-Defendant)
Brian Dean (Second Plaintiff/Second Cross-Defendant)
B.A.D Nominees (NSW) Pty Ltd (Third Plaintiff/Third Cross-Defendant)
Garslev Holdings Pty Ltd (First Defendant/First Cross-Claimant)
Leonardus Gerardus Smits (Third Defendant/Third…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWSC 24
Decision Date: 20 January 2022

CaseChat Overview and Summary

The case between Overdean Developments Pty Ltd and Garslev Holdings Pty Ltd (No 4) involved a dispute over costs following a complex litigation process. The plaintiffs, Overdean Developments, sought to recover costs from the defendants, Garslev Holdings, who had failed in their defence against the plaintiffs' claims and in their cross-claims against Overdean Developments. The defendants argued that the complexity of the costs issues meant no order should be made at this stage or at all. Conversely, the plaintiffs argued that the successful defendant should be ordered, along with the unsuccessful defendants, to pay their costs, and that the plaintiffs should not be required to pay the successful defendant’s costs.

The court addressed several key legal issues, including the appropriate basis for costs orders and whether the unsuccessful defendants should pay the plaintiffs' costs on an ordinary or indemnity basis. The court noted that while all parties' conduct of the proceedings was unsatisfactory, the unsuccessful defendants' conduct did not significantly increase the costs incurred by the plaintiffs. Additionally, the court considered a Calderbank offer, which was made to all defendants but was not capable of acceptance by the unsuccessful defendants only. The court concluded that the costs should follow the event of the plaintiffs' successful claims and defences, but the successful defendant should bear their own costs, while the unsuccessful defendants should pay the plaintiffs' costs on an ordinary basis.

The court further ruled that the unsuccessful defendants were to pay the plaintiffs' costs on an ordinary basis due to their unsatisfactory conduct in the proceedings. The court found no grounds for an indemnity basis for the costs. The court dismissed an informal application by the unsuccessful defendants for a stay of execution of the judgment and orders pending appeal, finding no question of principle involved.

The final orders of the court were that the unsuccessful defendants were to pay the plaintiffs' costs on an ordinary basis, and the plaintiffs were to pay the costs of the successful defendant. Additionally, the application for a stay of execution was dismissed.

Orders