McVicar v Hanson Construction Materials Pty Ltd (No.2) [2024] NSWSC 606

Supreme Court New South Wales

Medium Neutral Citation: McVicar v Hanson Construction Materials Pty Ltd (No.2) [2024] NSWSC 606 Hearing dates: On the papers Date of orders: 22 May 2024 Decision date: 22 May 2024 Jurisdiction: Common Law Before: Garling J Decision: Plaintiff to pay the defendant's costs on an indemnity basis from 21 September 2023. Catchwords: COSTS – Party/party – Indemnity basis – Whether costs should be awarded on an indemnity basis – Where a Calderbank offer was made by the defendant which was more favourable for the plaintiff than the final judgment of this Court. Legislation Cited: Civil Procedure Act 2005 Local Court Act 2007 Uniform Civil Procedure Rules 2005 Cases Cited: Australian Competition and Consumer Commission v Colgate Palmolive Pty Ltd (No.5) [2021] FCA 246 Hamod v State of NSW [2002] FCAFC 97 McVicar v Hanson Constructions Materials Pty Ltd [2024] NSWSC 175. Texts Cited: Not Applicable Category: Principal judgment Parties: Donna-Maree McVicar (P) Hanson Construction Materials Pty Ltd (D) Representation: Counsel: M Bennett (P) R Gall (D)

Solicitors: Emerson Lewis (P) Patane Law (D) File Number(s): 2023/333509 Publication restriction: Not Applicable

JUDGMENT 1. On 27 February 2024, for the reasons which I then gave, I ordered that the Summons commencing these proceedings be dismissed and that the plaintiff, ("Ms McVicar"), pay the defendant's ("Hanson") costs. My reasons are set out in McVicar v Hanson Constructions Materials Pty Ltd [2024] NSWSC 175. 2. Consequent upon the publication of the reasons, Hanson applied for an order that its costs be paid on an indemnity basis. 3. In that respect, Hanson relies on the affidavit of Mr Bruce Patane sworn 15 March 2024, and an Outline of Written Submissions. 4. In short, Hanson seeks an order that its costs be paid on an indemnity basis because, prior to the commencement of proceedings in this Court but after giving notice of its intention to appeal, it had on 14 September 2023, sent a Calderbank letter making an offer to Ms McVicar which was more favourable than the result of the final judgment in this Court. Alternatively, it seeks an order for indemnity costs on the basis that Ms McVicar commenced and maintained the proceedings in circumstances where she should have known that she had no real chance of success, was pursuing a hopeless case and/or persisted in prosecuting a case without regard to the forensic difficulties. 5. Ms McVicar was ordered to file and serve any affidavit material upon which she wished to rely in opposition to the orders sought, together with an outline of submissions. She did not do so and has not raised any matters in opposition to the orders sought. 6. As there are orders sought in the alternative, it is convenient to commence by referring to some parts of the judgment which are relevant to this application.