Valmont Interiors Pty Limited v Giorgio Armani Australia Pty Limited (No. 2)

[2021] NSWDC 9

District Court

New South Wales

Medium Neutral Citation:

Valmont Interiors Pty Limited v Giorgio Armani Australia Pty Limited (No. 2) [2021] NSWDC 9

Hearing dates:

Determined on the papers

Date of orders:

12 February 2021

Decision date:

12 February 2021

Jurisdiction:

Civil

Before:

Smith SC, DCJ

Decision:

1. The following judgments entered on 27 August 2020 be set off against each other with effect from the date of these orders:

a.   the judgment in favour of the plaintiff in the sum of $130,973.00; and

b.   the judgment in favour of the defendant on the cross-claim in the sum of $235,611.29.

2.   Order 3 made on 27 August 2020 be vacated.

3.   Save for the order referred to in order 2 above, all previous costs orders other than any adverse costs orders made against the defendant be vacated.

4.   The plaintiff pay the defendant’s costs of the proceedings on an ordinary basis up to and including 23 April 2020 and on an indemnity basis thereafter.

5.   The plaintiff is to pay the defendant’s costs of the motion.

Catchwords:

COSTS – Orders of primary judgment – set off – vacating of cost order – ordinary/indemnity basis

Legislation Cited:

Civil Procedure Act 2005, s 96

Cases Cited:

Calderbank v Calderbank [1976] Fam 93

Category:

Costs

Parties:

Valmont Interiors Pty Limited (ACN 117 035 864)
- Plaintiff / Cross Defendant
Giorgio Armani Australia Pty Limited (ACN 084 424 037)
- Defendant / Cross Claimant

Representation:

Counsel:
Mr M Dawson and Mr D Elliott - Plaintiff
Mr M Klooster – Defendant

Solicitors:
EMK Counsel Co – Plaintiff
Madison Marcus Law Firm – Defendant

File Number(s):

2017/184944

Publication restriction:

Nil

Judgment

1. This matter was heard by me on 20 to 24 July and 29 July 2020. On 27 August 2020 I gave judgment and made the following orders:

“1.   Judgment for the plaintiff in the amount of $130,973.

2.   Judgment for the defendant on the cross claim in the amount of $235,611.29.

3.   The plaintiff to pay 50% of the defendant’s costs as agreed or assessed.”

2. These reasons assume some familiarity with the reasons I gave for those orders.

3. By amended notice of motion the defendant, Armani, seeks variation of those orders so that the judgment amounts are set off against each other and an order that the plaintiff pay its costs on an ordinary basis up to 23 April 2020 or 10 July 2020 and on an indemnity basis after that date.

4. As I explained, at [231] of my primary judgment[1] , the costs orders were made against the high degree of probability that the costs of the proceedings exceeded the amount of the judgments and the importance of not increasing those costs any further than necessary. Unfortunately, those costs have increased as the parties remain in dispute about the appropriate costs orders. Before dealing with costs, I will first deal with the issue of whether I should make any order setting off the judgments in favour of each party.

   1. [2020] NSWDC 395.