HOWELL v FIORENZA [2008] NSWSC 709

New South Wales Supreme Court

CITATION : HOWELL v FIORENZA [2008] NSWSC 709

HEARING DATE(S) : 11 June 2008

JUDGMENT DATE : 16 July 2008

JURISDICTION : Equity

JUDGMENT OF : Hall J at 1

DECISION : Order that each party pay his and her own costs of the proceedings.

CATCHWORDS : COSTS – application for indemnity costs against successful party – whether disentitling conduct on the part of the successful party – alleged unwillingness by the successful party to negotiate – manner in which successful party pressed his claim

Civil Procedure Act 2005 LEGISLATION CITED : Property (Relationships) Act 1984 Uniform Civil Procedure Rules 2005

Anglo-Cyprian Trade Agencies Limited v Paphos Wine Industries Limited [1951] 1 All ER 873 CASES CITED : Arian v Nguyen (2001) 33 MVR 37, [2001] NSWCA 5 Hooker v Gilling (No 2) [2007] NSWCA 214 Oshlack v Richmond River Council (1998) 193 CLR 72

PARTIES : Iain HOWELL v Irene FIORENZA

FILE NUMBER(S) : SC No 3017 of 2006

COUNSEL : P: A Jamieson D: E Pender

SOLICITORS : P: Zerrin Jamieson D: Winn Legal

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HALL J

WEDNESDAY 16 JULY 2008

No 3017 of 2006

IAIN HOWELL v IRENE FIORENZA JUDGMENT 1 HIS HONOUR: Judgment was delivered in this matter on 3 May 2008. The only issue that remains for determination is the question of the costs of the proceedings. 2 In written submissions, the defendant sought an order for costs in her favour on the ordinary party/party basis from the commencement of proceedings until the date of a purported Calderbank letter, and thereafter, an order for costs in her favour on an indemnity basis: written submissions for the defendant dated 23 April 2008 at [1]. The defendant subsequently revised her position. This is as reflected in the terms of the proposed minutes of order dated 11 June 2008, in which she seeks orders that the defendant pay 50% of the plaintiff's costs on the ordinary basis from the commencement of proceedings until the date of the purported Calderbank letter, and thereafter, that the plaintiff pay the defendant's costs on an indemnity basis. 3 The plaintiff, on the other hand, contends that each party should bear their own costs: written submissions for the plaintiff dated 23 April 2008 at [4].