Walsh v KC & WL Brain Pty Ltd (No. 8)

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:

Uniform Civil Procedure Rules 2005.

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 Ltd

Representation:

Counsel:
Plaintiff – Mr Gunning, M.
Defendant – Mr O’Connor, J.

Solicitors:
Plaintiff – Rural Law
Defendant – Walsh & Blair Solicitors

File Number(s):

2020/00107856

Publication restriction:

Nil.

Judgment

Costs

1. 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.

2. 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.

3. 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.

4. 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.

5. There was then a specific response to matters contained in…