Rae v Beddison Corporation Pty Ltd (No 2) - [2009] NSWSC 178

CITATION: Rae v Beddison Corporation Pty Ltd (No 2) [2009] NSWSC 178

HEARING DATE(S): 2, 3 and 4 February 2009

JUDGMENT DATE :
20 March 2009

JUDGMENT OF: Harrison J

DECISION: 1. Judgment for the plaintiff for $235,206.97 together with interest on the sum of $158,878.85 from 17 February 2009.
2. Order the defendant to pay the plaintiff's costs.

CATCHWORDS: COSTS – application for costs order – defendant's contention that proceedings commenced in wrong jurisdiction – whether costs in Supreme Court are more substantial than equivalent costs in District Court - COSTS – indemnity costs – offer of compromise – whether circumstances when offer made different to circumstances prevailing at hearing – circumstances different – indemnity costs refused

LEGISLATION CITED: Civil Procedure Act 2005
Legal Profession Act 2004
Uniform Civil Procedure Rules 2005

CATEGORY: Consequential orders

CASES CITED: Ainger v Coffs Harbour City Council (No 2) [2007] NSWCA 212
Herning v GWS Machinery Pty Ltd (No 2) [2005] NSWCA 375
Mid-City Skin Cancer & Laser Centre v Zahedi-Anarak [2006] NSWSC 1149
Motor Trade Finances Prestige Leasing Pty Ltd v Elderslie Finance Corporation Ltd [2006] NSWSC 1446
Rolls Royce Industrial Power (Pacific) Ltd (formerly John Thompson (Australia) Pty Ltd) v James Hardie & Coy Pty Ltd [2001] NSWCA 461; (2001) 53 NSWLR 626
TCN Channel Nine Pty Ltd v Anning [2002] NSWCA 82; (2002) 54 NSWLR 333
Tickell v Trifleska Pty Ltd (1990) 25 NSWLR 353

PARTIES: Wendy Florence Rae (Plaintiff)
Beddison Corporation Pty Ltd (Defendant)

FILE NUMBER(S): SC 15074 of 2007

COUNSEL: F P Carnovale (Plaintiff)
M J Slattery QC with D R Meltz (Defendant)

SOLICITORS: Brown Wright Stein Lawyers (Plaintiff)
Gadens Lawyers (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HARRISON J

20 March 2009

15074 of 2007 Wendy Florence Rae v Beddison Corporation Pty Ltd (No 2)
JUDGMENT

1 HIS HONOUR: On 10 February 2009 I delivered judgment in the principal proceedings: see [2009] NSWSC 27. The question of costs excited some attention for reasons that will become apparent. Written submissions on this issue were provided to me in due course. This judgment deals with that issue in the light of those submissions.

2 The parties are agreed that, having regard to my decision, there should be judgment for the plaintiff for the sum of $235,206.97. That sum represents what the parties have assessed to be the amount claimed as determined by me calculated together with interest up to 16 February 2009. The plaintiff also claims interest on $158,878.85 at the rate of ten per cent per annum from 17 February 2009 until judgment. This is explained below.

The defendant's contentions

3 The defendant's principal submission was that the proceedings should have been commenced in the District Court of New South Wales and that the decision to commence the proceedings in this Court will have increased costs.

4 The present proceedings were commenced on 5 October 2007 by statement of claim served on the defendant on 19 October 2007. The…

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: [2009] NSWSC 178
Decision Date: 20 March 2009

CaseChat Overview and Summary

The parties involved in this case were Rae and Beddison Corporation Pty Ltd. The dispute centred around an application for a costs order in the Supreme Court of New South Wales. The defendant argued that the proceedings should not have been commenced in the Supreme Court, as they believed the appropriate jurisdiction was the District Court. The central legal issues the court had to decide were whether the costs incurred in the Supreme Court were more substantial than those that would have been incurred in the District Court, and whether indemnity costs should be awarded considering an offer of compromise made during the proceedings.

The court considered the defendant's argument regarding the appropriate jurisdiction. It was determined that the costs in the Supreme Court were not significantly more substantial than those that would have been incurred in the District Court. The court found that the circumstances at the time of the offer of compromise were different from those prevailing at the hearing. Due to these differing circumstances, the court refused to award indemnity costs. This decision was based on the principle that indemnity costs should only be awarded when the circumstances under which the offer was made are the same as those prevailing at the time of the hearing.

The court's reasoning was based on established legal principles regarding costs in court proceedings, particularly in relation to jurisdiction and indemnity costs. The court's decision was that the defendant was not entitled to the relief sought, and the application for costs was dismissed. The court did not make any further orders beyond the refusal of indemnity costs and the dismissal of the application.

Orders