Shimden Pty Ltd v Park Pty Ltd (No 2) - [2022] NSWSC 415

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Shimden Pty Ltd v Park Pty Ltd (No 2) [2022] NSWSC 415
Hearing dates: On the papers
Date of orders: 8 April 2022
Decision date: 08 April 2022
Jurisdiction: Equity
Before: Darke J
Decision:
Order that the defendant pay the plaintiff’s costs of the proceedings (other than in relation to the Cross-Claim), with such costs to be paid on the ordinary basis in respect of costs incurred up to and including 14 September 2021, and on an indemnity basis in respect of costs incurred thereafter

Catchwords:
COSTS – plaintiff successful in obtaining judgment – judgment in an amount less than $500,000 – whether plaintiff should not receive a costs order because the proceedings could have been commenced in the District Court – at time of commencement the proceedings included a claim for the withdrawal of a caveat – held that the proceedings could not have been commenced in the District Court – plaintiff entitled to costs order – some costs to be paid on an indemnity basis due to unreasonable failure of defendant to accept a Calderbank offer

Legislation Cited:
Real Property Act 1900 (NSW), s 74MA
Uniform Civil Procedure Rules 2005 (NSW), r 42.34

Cases Cited:
Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322
Shimden Pty Ltd v Park Pty Ltd [2022] NSWSC 267
StockCo Agricapital Pty Ltd v Dairy Livestock Services Pty Ltd (No 2) [2020] NSWSC 636

Category: Costs
Parties: Shimden Pty Ltd (Plaintiff/Cross-Defendant)
Park Pty Ltd (Defendant/Cross-Claimant)
Representation:
Counsel:
Mr F C Corsaro SC with Mr F F F Salama (Plaintiff/Cross-Defendant)
Mr P T Newton SC (Defendant/Cross-Claimant)
Solicitors:
Memcorp Lawyers (Plaintiff/Cross-Defendant)
Stanton and Stanton Lawyers (Defendant/Cross-Claimant)

File Number(s): 2019/229337
Publication restriction: None

Judgment

The Court delivered its reasons for judgment in this matter on 15 March 2022 (see Shimden Pty Ltd v Park Pty Ltd [2022] NSWSC 267). In accordance with those reasons, judgment was entered for the plaintiff against the defendant on 29 March 2022 in the sum of $381,369.51, such sum including interest up to judgment of $40,123.52.
The question of costs remains outstanding.
The plaintiff seeks a costs order in its favour in accordance with the usual rule that costs follow the event, and further seeks the costs on an indemnity basis from 14 September 2021 due to the failure of the defendant to accept a Calderbank offer made on that day in the sum of $347,000 inclusive of costs.
The defendant resists any order for costs in favour of the plaintiff. It invokes Uniform Civil Procedure Rules 2005 (NSW) r 42.34 which provides:

42.34   Costs order not to be made in proceedings in Supreme Court unless Court satisfied proceedings in appropriate court
(1)   This rule applies if—
(a)   in proceedings in the Supreme Court, other than defamation proceedings, a plaintiff has obtained a judgment against the defendant or, if more than one defendant, against all the defendants, in an amount of less than $500,000, and
(b)   the plaintiff would,…

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 415
Decision Date: 08 April 2022

CaseChat Overview and Summary

Shimden Pty Ltd, the plaintiff, brought an action against Park Pty Ltd, the defendant, seeking relief from the Supreme Court of New South Wales. The dispute involved an assessment of damages arising from a contractual dispute, with the plaintiff claiming an amount less than $500,000. The defendant argued that the plaintiff should not receive a costs order because the proceedings could have been commenced in the District Court. The plaintiff's initial claim included a request for the withdrawal of a caveat, which impacted the court in which the proceedings could be commenced.

The legal issues before the court centred on whether the proceedings could have been commenced in the District Court, and if so, whether the plaintiff was entitled to a costs order. The court had to determine whether the inclusion of the caveat withdrawal claim necessitated the proceedings to be heard in the Supreme Court. Additionally, the court considered whether the defendant's unreasonable refusal to accept a Calderbank offer should result in some costs being paid on an indemnity basis.

The court found that the proceedings could not have been commenced in the District Court due to the inclusion of the caveat withdrawal claim. This determination allowed the plaintiff to be entitled to a costs order. The court also found that the defendant's failure to accept a Calderbank offer was unreasonable, leading to the conclusion that some costs should be paid on an indemnity basis. The plaintiff was thus awarded costs, with specific costs to be paid on an indemnity basis due to the defendant's unreasonable conduct.

Orders