Woolworths Limited v Mark Konrad Olson & Anor [2004] NSWSC 896

New South Wales Supreme Court

CITATION : Woolworths Limited v Mark Konrad Olson & Anor [2004] NSWSC 896 HEARING DATE(S) : 27/09/04 JUDGMENT DATE : 27 September 2004

JURISDICTION: Equity Division Commercial List JUDGMENT OF : Einstein J DECISION : Indemnity costs orders made against defendant in respect of identified sections of the proceedings.

CATCHWORDS : Costs - Indemnity costs - Whether indemnity costs order may be made in respect of the obtaining and executing of an Anton Pillar order - Principles - See paragraph 22 as to all orders LEGISLATION CITED : Industrial Relations Act 1996 (NSW) Degmam Pty Ltd (in liquidation) v Wright (No 2) (1983) 2 NSWLR 354 CASES CITED : Harrison v Schipp [CA 40208/98; CA 40761/98] Court of Appeal, unreported, 22 February 2001 [BC 200100344] Oshlack v Richmond River Council (1998) 193 CLR 72 Woolworths Limited ACN 000 014 675 (Plaintiff) PARTIES : Mark Konrad Olson (First Defendant) Dianne Olson (Second Defendant) FILE NUMBER(S) : SC 50116/04 COUNSEL : Mr RM Smith SC, Mr MA Jones (Plaintiff) Mr RM Goot SC, Mr SEJ Prince (Defendants) SOLICITORS : Clayton Utz (Plaintiff) Maddocks (Defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

Einstein J

Monday 27 September 2004 ex tempore Revised 28 September 2004

50116/04 Woolworths Ltd v Mark Konrad Olson & Anor JUDGMENT The state of the proceedings 1 A reserved judgment was delivered on 22 September 2004. The proceedings are presently before the Court for the purpose of dealing with costs and short minutes of order. Costs The principles 2 Although the parties addressed in some detail on the appropriate legal principles which underpin the proper exercise of the Court's discretion as to costs, it does not seem to be necessary other than shortly to revisit the authorities. However one matter of principle not previously examined does arise. 3 The general principles were revisited by the High Court of Australia in some detail in Oshlack v Richmond River Council (1998) 193 CLR 72. McHugh J pointed out at paragraph 67 that by far the most important factor which courts have viewed as guiding the exercise of the costs discretion, is the result of the litigation and that a successful litigant is generally entitled to an award of costs. As McHugh J said: