Dixonbuild Pty Ltd v Everhard Industries Pty Ltd (No. 2) [2022] NSWDC 528

District Court New South Wales

Medium Neutral Citation: Dixonbuild Pty Ltd v Everhard Industries Pty Ltd (No. 2) [2022] NSWDC 528 Hearing dates: On the papers Date of orders: 3 November 2022 Decision date: 03 November 2022 Jurisdiction: Civil Before: Russell SC DCJ Decision: (1) The costs ordered on 11 October 2022 to be paid by the plaintiff to the defendant are to be assessed on an indemnity basis after 11 July 2022. (2) The costs ordered to be paid on an indemnity basis include the costs of this costs determination. Catchwords: COSTS — application for indemnity costs - whether offer was a genuine offer of compromise – whether it unreasonable for the plaintiff not to accept the offer Cases Cited: Dixonbuild Pty Ltd v Everhard Industries Pty Ltd [2022] NSWDC 464 Category: Costs Parties: Dixonbuild Pty Ltd trading as Dixon Homes (Plaintiff) Everhard Industries Pty Ltd (Defendant) Representation: Counsel: B Whitten (Plaintiff) C O'Neill (Defendant)

Solicitors: CDI Lawyers (Plaintiff) Clyde & Co (Defendant) File Number(s): 2021/00361694

Judgment

Introduction 1. On 11 October 2022 I dismissed the plaintiff's Notice of Motion filed on 13 June 2022 and ordered the plaintiff to pay the defendant's costs – Dixonbuild Pty Ltd v Everhard Industries Pty Ltd [2022] NSWDC 464 (the primary judgment). 2. I granted leave to the parties to approach my Associate to obtain a date for argument concerning the defendant's application for indemnity costs of the Notice of Motion. The parties later agreed that this application should be determined on the papers. The defendant filed a Written Submission dated 28 October 2022 (MFI 3) and the plaintiff filed a Written Submission dated 31 October 2022 (MFI 4).