Capitalink Pty Ltd v Withnall (No.3) [2024] NSWDC 3

District Court New South Wales

Medium Neutral Citation: Capitalink Pty Ltd v Withnall (No.3) [2024] NSWDC 3 Hearing dates: On the papers Date of orders: 29 January 2024 Decision date: 29 January 2024 Jurisdiction: Civil Before: Abadee DCJ Decision: See paragraph 27 Catchwords: COSTS – application for partial order for indemnity costs – losing party's rejection of Calderbank offer – offeror's explanatory reasoning in the Calderbank letter omitted reference to the dispositive point at the hearing Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 42.2, 42.5 Cases Cited: Calderbank v Calderbank [1975] 3 All ER 333 Capitalink Pty Ltd v Withnall (No.2) [2023] NSWDC 547 Texts Cited: Nil Category: Costs Parties: Capitalink Pty Ltd (ACN 602 481 685) (plaintiff) Marc Douglas Withnall (defendant) Representation: Counsel: M. Fernandes (plaintiff) M. Connor (defendant)

Solicitors: Centurion Lawyers (plaintiff) Macpherson Kelley Lawyers (defendant) File Number(s): 2021/357102 Publication restriction: Nil

REASONS FOR JUDGMENT

Background 1. On 7 December 2023 I gave judgment for the plaintiff for nominal damages ($100) in this proceeding, which featured a creditor's claim against a surety. My reasons have been published on Caselaw (Capitalink Pty Ltd v Withnall (No.2) [2023] NSWDC 547). 2. As indicated in those reasons, although I made a costs order in favour of the defendant (order 2), that was without having heard from the parties on the question of costs and order 3 provided the opportunity for the parties to apply to vary it. 3. The defendant (Mr Withnall) availed itself of that opportunity and now applies for an order that his costs be paid by the plaintiff (Capitalink) on the ordinary basis up to 19 October 2023 and on an indemnity basis thereafter. 4. Capitalink does not dispute Mr Withnall obtaining an order for costs, however it does oppose the application that they be partly paid on an indemnity basis.