Rail Corporation New South Wales v Leduva Pty Ltd [2005] NSWSC 138

New South Wales Supreme Court

CITATION : Rail Corporation New South Wales v Leduva Pty Ltd [2005] NSWSC 138

HEARING DATE(S) : 23/02/05

JUDGMENT DATE : 4 March 2005

JUDGMENT OF : Nicholas J

DECISION : Defendant to pay Plaintiff's costs on indemnity basis; costs to be assessed and payable forthwith

CATCHWORDS : Costs - costs on indemnity basis - costs of successful Plaintiff's interlocutory application for injunctive relief - order dissolved by consent prior to final hearing - whether Plaintiff entitled to recover indemnity costs pursuant to contractual indemnity provision - whether costs should be assessed and payable forthwith - general principles

LEGISLATION CITED : Supreme Court Rules Pt 52A, r 9; Practice Note 100 para 23

Abigroup Limited v Sandtara Pty Limited [2002] NSWCA 45 Baltic Shipping Company v Dillon (1991) 22 NSWLR 1 CASES CITED : Gomba Holdings Limited v Minories Finance (1993) Ch 171 Malvern Urban District Council v Malvern Link Gas Co. (1900) 83 LT 326

Rail Corporation New South Wales - Plaintiff PARTIES : Leduva Pty Ltd - Defendant

FILE NUMBER(S) : SC 4923/04

R J Carruthers - Plaintiff COUNSEL : R W Tregenza - Defendant

Blake Dawson Waldron - Plaintiff SOLICITORS : Cadmus Lawyers - Defendant

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

Nicholas J

4 March 2005

4923/04 Rail Corporation New South Wales v Leduva Pty Ltd JUDGMENT 1 His Honour: On 22 November 2004 I held that the order made on 6 September 2004 should continue until further order, and I dismissed Leduva's notice of motion for an order that the injunction be dissolved. The question of costs of the interlocutory proceedings was not decided. I published my reasons on 30 November 2004. 2 On 2 February 2005 the injunction was dissolved by consent. 3 There remains for the future Railcorp's claim for damages against Leduva. The matter has been referred to the Commercial List on 11 March 2005 for directions. 4 The present proceedings concern the outstanding question of costs of the interlocutory proceedings. 5 Railcorp seeks orders on several grounds that Leduva pay its costs to date on an indemnity basis and that such costs be payable forthwith. Leduva opposes the claim and itself seeks an order that costs be costs in the cause, alternatively, that each party pay its own costs. Background 6 The background and circumstances which led to the commencement of the interlocutory proceedings are described in my judgment of 30 November 2004, and these reasons should be read with it. However, matters of particular relevance on the costs issue are the following. 7 The development deed made on 9 March 2004 (the deed) pursuant to which Railcorp consented to Leduva undertaking the development included the following provisions: "5.1(b) Developer must comply and must ensure that any person authorised by it to undertake any of the Works complies with the terms of this Deed or any direction lawfully given by Rail Party either under this Deed or any applicable Law. … 6.1 In addition to Developer's other obligations set out in this Deed, Developer must at all times during the Term comply, and ensure that all other persons acting on its behalf comply, with: … (b) all requirements and directions of Rail Party concerning safety within the Railway Corridor. … 10.3 Developer must ensure that all construction is carried out strictly in accordance with the Development Documents. … 11(a) Developer must ensure that the Works: … (vii) comply with all Rail Party directions; and (viii) comply with the other requirements of this Deed. … 20.1 Developer warrants that: … (j) it will ensure that the Works are carried out with reasonable skill and care; and … 32.2 Nothing in this clause prevents Rail Party from applying to a court for urgent injunctive, declaratory or other relief". 8 Under the deed Railcorp's costs were specifically provided for as follows: "14.1(a) Developer must pay all of Rail Party's Costs by the Due Date and otherwise in accordance with this clause". 9 In the dictionary, Attachment C, the expression "Rail Party's Costs" was defined to mean: "… Rail Party's Costs in carrying out its functions under this Deed, more fully described in Schedule 1 of this Deed".