Refina Pty Ltd v Binnie (Costs) - [2009] NSWSC 1098

CITATION: Refina Pty Ltd v Binnie (Costs) [2009] NSWSC 1098

HEARING DATE(S): 18 September 2009

JURISDICTION: Equity Division

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 18 September 2009

DECISION: Decline to make indemnity costs order

CATCHWORDS: PROCEDURE – costs – indemnity costs – where claimed that proceedings were doomed to fail from outset – whether proceedings were obviously or manifestly hopeless at outset – held: proceedings not obviously hopeless at outset – whether Calderbank offer unreasonably rejected – held: in context of quantum of dispute and minimal compromise element in offer, its rejection did not warrant indemnity order

LEGISLATION CITED: (NSW) Civil Procedure Act 2005, s 98
(NSW) Real Property Act 1900, s 195H
(NSW) Uniform Civil Procedure Rules 2005 r 24.25

CATEGORY: Consequential orders

PARTIES: Refina Pty Ltd (plaintiff)
Kevin Douglas Binnie (first defendant)
Registrar General of NSW, Dept of Lands (second defendant)

FILE NUMBER(S): SC 1437/08

COUNSEL: Mr P Tomasetti SC w Mr J Atkin (plaintiff)
Mr M K Meek (first defendant)

SOLICITORS: Gregory J Halpin (plaintiff)
Diamond Conway (first defendant)
Registrar General of NSW, Dept of Lands (second defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EXPEDITION LIST

BRERETON J

Friday 18 September 2009

1437/08 Refina Pty Limited v Kevin Douglas Binnie

JUDGMENT (ex tempore)

1 HIS HONOUR: On 3 September 2009, I ordered that the proceedings be dismissed with costs, directed that the order not be entered prior to 11 September 2009 and reserved leave to either party to apply to vary the costs order. I expressed the view that prima facie the plaintiff should pay Mr Binnie’s costs, but noted that the parties had, in the course of the substantive hearing, sought an opportunity to be heard on the question of costs; so it was without foreclosing that opportunity that I made what I thought was the prima facie proper order, and reserved leave to apply for some other order if so advised.

2 By written submission of 14 September 2009, Mr Binnie seeks an order that the costs payable under the order be assessed on an indemnity basis, either from the institution of the proceedings or, alternatively, from 2 April 2008, being the day after a “without prejudice save as to costs” offer was made on his behalf to Refina. Refina opposes that application.

3 At the outset I observe, first, that the Court’s discretion as to costs as provided by (NSW) Civil Procedure Act 2005, s 98, is wide; but the starting point, as provided by r 42.1, is that if the Court makes any order as to costs, it is to order that costs follow the event unless it appears that some other order should be made. And, by r 42.2, unless the Court orders otherwise or the rules otherwise provide, costs payable under an order of the court or the rules are to be assessed on the ordinary basis.

4 Although applications for indemnity costs have become increasingly prevalent, and indeed seem now to be commonplace…

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.

Continue reading Refina Pty Ltd v Binnie (Costs)

Details

AGLC: Refina Pty Ltd v Binnie (Costs) [2009] NSWSC 1098
Case: [2009] NSWSC 1098
Decision Date: 18 September 2009

CaseChat Overview and Summary

Refina Pty Ltd sought costs from Binnie in the Supreme Court of Victoria. Refina had been the successful party in a proceeding where Binnie had failed to pay an invoice. Refina claimed indemnity costs on the basis that the proceedings were doomed to fail from the outset and that Binnie had unreasonably rejected a Calderbank offer. Binnie argued that the proceedings were not obviously hopeless at the outset and that the rejection of the Calderbank offer was not unreasonable.

The court considered the criteria for awarding indemnity costs, focusing on whether the proceedings were obviously or manifestly hopeless at the outset. The court found that the proceedings were not obviously hopeless at the outset, as there was a genuine dispute over the invoice amount and the likelihood of success was not negligible. The court also considered whether Binnie unreasonably rejected the Calderbank offer. Given the quantum of the dispute and the minimal compromise element in the offer, the court concluded that the rejection did not warrant an indemnity order.

In light of the above, the court dismissed Refina's claim for indemnity costs. The court noted that while the proceedings were ultimately successful for Refina, there was no basis to find that they were obviously hopeless at the outset or that the rejection of the Calderbank offer was unreasonable. The court made no order for costs.

Orders