Total & Universal Pty Ltd v Kingsway Property Investments (No. 2) Pty Ltd [2007] NSWSC 581

New South Wales Supreme Court

CITATION : Total & Universal Pty Ltd v Kingsway Property Investments (No. 2) Pty Ltd [2007] NSWSC 581

HEARING DATE(S) : 14 May 2007

JUDGMENT DATE : 8 June 2007

JURISDICTION : Equity

JUDGMENT OF : Campbell JA

DECISION : (1) Defendant to pay the costs of the Plaintiff, and of Mr Richard Heseltine, relating to the order sought in paragraph 3 of the Notice of Motion filed by the Defendant on 5 April 2007.; (2) Defendant/Cross Claimant to pay costs of the Cross Defendant of the Cross Claim.; (3) Subject to Order 1, Plaintiff to pay costs of the Defendant, those costs to include the costs the Defendant is liable to pay to the Cross Defendant.

CATCHWORDS : COSTS – order as to costs – where plaintiff unsuccessful in proceedings – where defendant initiated cross-claim against third party – where cross-claim unsuccessful due to failure of original proceedings – whether departure from default rule that costs follow the event warranted – whether indemnity costs warranted - COSTS – order as to costs – Calderbank letters – where letter was invitation to surrender cast in the form of an offer of compromise – invitation to surrender does not trigger an entitlement to indemnity costs - COSTS – order as to costs – whether successful defendant should be denied costs – conduct constituting alleged cause of action irrelevant in determining whether successful defendant should be denied costs - COSTS – order as to costs – costs of successful cross-defendant – where plaintiff unsuccessful in proceedings – whether costs of successful cross-defendant should be borne by plaintiff or by defendant – whether plaintiff rather than defendant ought to have joined cross-defendant to proceedings

Trade Practices Act 1974 (Cth) LEGISLATION CITED : Uniform Civil Procedure Rules Valuation of Land Act 1916