District Court
New South Wales
Medium Neutral Citation: Walsh v KC & WL Brain Pty Ltd (No. 8) [2024] NSWDC 338 Hearing dates: 27 – 29 May 2024 Date of orders: 29 May 2024 Decision date: 29 May 2024 Jurisdiction: Civil Before: Neilson DCJ Decision: I order the plaintiff/cross-defendant to pay the defendant’s/cross-claimant’s costs on the ordinary basis until 20 October 2023 and thereafter on an indemnity basis.
Catchwords: COSTS – Whether Defendant (Cross-Claimant) entitled to indemnity costs and, if so, from when.
Legislation Cited: Cases Cited: Calderbank v Calderbank (1976) Fam 93; (1975) 3 WLR 586; (1975) 3 All ER 333
Commonwealth of Australia v Gretton [2008] NSWCA 117
Thomas William Vale v Timothy David Eggins (No 2) [2007] NSWCA 12
Texts Cited: Nil.
Category: Costs Parties: Plaintiff – Alan David Walsh
Defendant – KC & WL Brain Pty LtdRepresentation: Counsel:
Solicitors:
Plaintiff – Mr Gunning, M.
Defendant – Mr O’Connor, J.
Plaintiff – Rural Law
Defendant – Walsh & Blair Solicitors
File Number(s): 2020/00107856 Publication restriction: Nil.
Judgment
Costs
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HIS HONOUR: The remaining issue concerns costs. This is the 30th year in which I have observed, from the Bench, that nothing excites the zeal, the ardour and the passion of members of the legal profession more than an argument about costs.
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These proceedings were commenced on 9 April 2020. Prior thereto, there was correspondence between the parties upon which the defendant relies seeking indemnity costs. Rural Law, of which the principal is Mr Peter Long, wrote to both the defendant and Mr and Mrs Brain personally on 20 December 2019, a four-page letter. It has been tendered and marked Exhibit V. It sets out in embryonic form many of the claims made by the plaintiff in these proceedings. It relies upon the contract for the sale of Dalree and an allegation that the Dalree rice crop, being fructus industriales, remained the property of the plaintiff, contrary to the finding that I made in my principal judgment, and maintains that the proposed joint venture was actually made, and makes a claim for a “grand total” of $2,123,188.52.
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However, the letter also contains an offer that the plaintiff would accept $606,600 inclusive of costs as a full and final settlement of all of his claims against them. That offer was said to be made in accordance with the principles arising in Calderbank v Calderbank (1976) Fam 93; (1975) 3 WLR 586; (1975) 3 All ER 333.
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That letter was answered by one sent by Walsh & Blair to Mr Long on 17 February 2020. That letter became Exhibit 19, and like Mr Long’s letter of 20 December 2019, it was marked without prejudice save as to costs. That largely set out the position taken by the defendant/cross‑claimant and set out in the first four and a half pages the defendant’s position about the dispute between the defendant and the plaintiff.
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There was then a specific response to matters contained in…
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- Case
- [2024] NSWDC 338
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was to determine whether the defendant was entitled to indemnity costs and, if so, from what point in time such entitlement should apply. This involved examining the relevant provisions of the Uniform Civil Procedure Rules and considering the applicable principles of indemnity costs in Australian law. The court had to weigh the circumstances of the case, including the conduct of both parties, the success of the defendant’s cross-claim, and the progression of the litigation.
The court held that the defendant was indeed entitled to indemnity costs, but only from a particular date onwards. The reasoning of the court was based on a detailed analysis of the procedural history of the case and the factors that influenced the court's assessment of costs. The court found that the defendant's cross-claim was successful and that the plaintiff's conduct warranted indemnity costs from the specified date. Consequently, the court ordered that the plaintiff would be responsible for paying the defendant's costs on an ordinary basis until that date and on an indemnity basis thereafter.
In summary, the court's decision was that the plaintiff would pay the defendant's costs on the ordinary basis until 20 October 2023 and on an indemnity basis from that date onwards. This ruling provided clarity on the entitlement to indemnity costs and the timeframe for such entitlement, reflecting the court's consideration of the legal principles and the specific facts of the case.
Orders
Orders of the court
I order the plaintiff/cross-defendant to pay the defendant’s/cross-claimant’s costs on the ordinary basis until 20 October 2023 and thereafter on an indemnity basis.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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