Nowra Radiology Pty Ltd v Macintosh (No 2) [2020] FCA 1743

EVIDENCE – whether evidence of Calderbank offer inadmissible under s 53B of the Federal Court of Australia Act 1976 (Cth) – whether offer made by email to the mediator constitutes evidence of anything “said … at a conference conducted by a mediator” – offer held inadmissible.

COSTS – where respondent acceded to part of the relief sought without admission of liability and the balance of the relief was subsequently dismissed by consent save as to costs – whether (different) Calderbank offer can be a foundation for indemnity costs when proceeding terminated without a determination on the merits – whether accession to part of the relief amounted to capitulation – whether it can be said that either side would inevitably have succeeded – whether subsequent dismissal of the proceeding by consent should be treated the same as discontinuance with regard to costs – where both parties have incurred substantial sums in costs – no discernible reason why one party or the other should pay costs – each party to bear its own costs.

Jennifer Mee represented the respondent.

Reasons for the decision can be found here.

Walton v Commonwealth Bank of Australia [2020] NSWCA 191

CIVIL PROCEDURE — Discontinuance — Costs — No consent to discontinue without paying costs — Plaintiff sought leave to discontinue with no order as to costs — Proceedings lacking practical utility — Both defendants impecunious — Defendants’ cross-claim abandoned — No right by way of defence and set-off to recover any amount exceeding the debt owed to the plaintiff — Litigation had begun to “feed on itself” — Uniform Civil Procedure Rules 2005 (NSW), r 12.1.

COSTS — Discontinuance — Usual rule that discontinuing party pay defendant’s costs — Power to order otherwise — Plaintiff sought leave to discontinue with no order as to costs — Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 42.19(2).

Tim Castle SC represented the Respondent.

Reasons for the decision can be found here.

Ratkovic v Hadzic [2019] NSWSC 1627

COSTS – costs of and incidental to a notice of motion filed by the plaintiff – where settlement reached between the plaintiff and the defendant and the notice of motion was not dealt with on its merits – where term of the settlement was that the plaintiff was to bear the burden of any order for costs made in favour of the respondent in relation to the plaintiff’s notice of motion – held appropriate to make a gross sum costs order.

Madeleine Bridgett represented the defendant.

The reasons for the decision can be found here.

Burton v Prior (No 2) [2019] NSWSC 1431

COSTS — party/party – general rule that costs follow the event – application of the rule and discretion – each party enjoys a measure of success – no issue of principle.

Kirralee Young represented the plaintiff.

Reasons for the decision can be found here.

ACN 153 364 491 Ltd (in liq) v GP No 1 (in liq), in the matter of GP No 1 (in liq) [2018] FCA 1933

COSTS – application by the defendants for an order that the plaintiff provide security for costs – application brought under s 1335 of the Corporations Act 2001 (Cth) and r 19.01 of the Federal Court Rules 2011 (Cth) – where principal order sought by the defendants is that the plaintiff provide security for costs in a fixed amount or some other amount as is determined by the Court – where defendants seek a further order that the proceeding be stayed until the amount sought is paid into Court and an order that if that is not done, the proceeding be dismissed with costs – whether power to order security for costs under s 1335(1) of the Corporations Act is engaged because there is credible evidence which establishes that there “is reason to believe that the corporation will be unable to pay the costs of the defendant if successful in his, her or its defence” – consideration of the timing of defendants’ application for security for costs – preliminary consideration of the merits of the plaintiff’s claim –whether plaintiff’s present impecuniosity is due to the defendants’ failure to pay – whether proceeding will be stifled if security is ordered.

Tim Castle represented the Plaintiff.

Reasons for the judgement can be found here.

Commonwealth Bank of Australia v Daleport Pty Ltd (in receivership) (No 5) [2018] NSWSC 1935

COSTS – application for costs order entered be varied – application for gross sum costs order – where defendant rejected the plaintiff’s offer of payment and sought assessment of costs – where plaintiff previously sought assessment of costs and opposed any lump sum quantification - whether plaintiff’s position should be characterised as a capitulation.

Tim Castle represented the Plaintiff.

Reasons for the judgement can be found here.

Commonwealth Bank of Australia v Daleport Pty Limited (in receivership) (No 4) [2018] NSWSC 842

COSTS – application for payment forthwith – consideration of relevant factors – protracted dispute as to discovery – where refusal to order payment forthwith would stultify defence of bank’s claim – whether defence of claim futile – whether payment forthwith should be refused on that basis.

Tim Castle represented the Plaintiff.

Reasons for the judgement can be found here.