Overdean Developments Pty Ltd v Garslev Holdings Pty Ltd (No 4) [2022] NSWSC 24

Supreme Court New South Wales

Medium Neutral Citation: Overdean Developments Pty Ltd v Garslev Holdings Pty Ltd (No 4) [2022] NSWSC 24 Hearing dates: On the papers Date of orders: 20 January 2022 Decision date: 20 January 2022 Jurisdiction: Equity - Expedition List Before: Williams J Decision: See paragraph [82]. Catchwords: COSTS – whether costs should follow the overall event or whether separate costs orders should be made in relation to specific issues – where unsuccessful defendants/cross-claimants contend that costs outcomes of individual issues are so complex that no costs order should be made at this stage, or at all – where plaintiffs contend that the one successful defendant should be ordered (together with the unsuccessful defendants) to pay the plaintiffs' costs and the plaintiffs should not be ordered to pay the successful defendant's costs - held that costs should follow the event of the plaintiffs' successful claims and successful defence of the cross-claims, but the costs order in favour of the plaintiffs should be made against the unsuccessful defendants only – held further that the plaintiff should pay the costs of the successful defendant. COSTS – INDEMNITY BASIS - whether unsuccessful defendants should pay plaintiffs' costs on ordinary or indemnity basis having regard to their conduct that gave rise to the proceedings, the manner in which they conducted the proceedings, or a Calderbank offer – where all parties' conduct of the proceedings was unsatisfactory – where unsuccessful defendants' unsatisfactory conduct of the proceedings did not increase costs incurred by plaintiffs – where Calderbank offer made to all defendants and not capable of acceptance by unsuccessful defendants only - held that costs payable on the ordinary basis. PRACTICE AND PROCEDURE – informal application for stay of execution of judgment and orders (including costs orders) pending appeal – application dismissed – no question of principle. Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 98 Uniform Civil Procedure Rules 2005 (NSW), r 36.17, Pt 42 Cases Cited: Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333; [2019] HCA 29 Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd [2021] NSWSC 1374 Calderbank v Calderbank [1975] 3 All ER 333; [1975] 3 WLR 586 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Overdean Developments Pty Ltd v Garslev Holdings Pty Ltd (Supreme Court of New South Wales, Sackar J, 28 April 2020) Overdean Developments Pty Ltd v Garslev Holdings Pty Ltd (No. 2) [2020] NSWSC 745 Overdean Developments Pty Ltd v Garslev Holdings Pty Ltd (No. 3) [2021] NSWSC 1482 Taheri v Vitek [2013] NSWCA 438 Vieria v O'Shea (No. 2) [2012] NSWCA 121 Ziegler as trustee for the Doris Gayst Testamentary Trust v Cenric Proeprty Group Pty Ltd [2020] NSWCA 85 Texts Cited: N/A Category: Costs Parties: Overdean Developments Pty Ltd as trustee of the Dean Super Fund (First Plaintiff/First Cross-Defendant) Brian Dean (Second Plaintiff/Second Cross-Defendant) B.A.D Nominees (NSW) Pty Ltd (Third Plaintiff/Third Cross-Defendant) Garslev Holdings Pty Ltd (First Defendant/First Cross-Claimant) Leonardus Gerardus Smits (Third Defendant/Third Cross-Claimant) Peter Shah Mahommed (Fourth Defendant/Fourth Cross-Claimant) Vestecorp Financial Services Pty Ltd (Fifth Defendant/Fifth Cross-Claimant) Jacobus Smits (Sixth Defendant/Sixth Cross-Claimant) Representation: Counsel: D Allen (Plaintiffs/Cross-Defendants) L Smits, solicitor (Defendants/Cross-Claimants)