Hunter Business Finance Pty Ltd v Australian Commercial & Equipment Finance Pty Ltd [2009] NSWSC 1032

New South Wales Supreme Court

CITATION : Hunter Business Finance Pty Ltd v Australian Commercial & Equipment Finance Pty Ltd [2009] NSWSC 1032

HEARING DATE(S) : 01 September 2009

JUDGMENT DATE : 30 September 2009

JUDGMENT OF : Gzell J

DECISION : Companies substituted for brokers by novation. Companies liable to pay assessed damages and not the brokers. Plaintiff entitled to costs on ordinary basis up to the date of the offer of compromise and brokers and their companies entitled to costs thereafter on an indemnity basis.

CATCHWORDS : CONTRACTS - General Contractual Principles - Novation - defendant brokers provided services to plaintiff - change to provide services "through" companies - plaintiff treated companies as the service providers and paid commissions to them - whether companies substituted for brokers by novation - whether dual obligations of brokers and companies and services not provided "by" companies - whether brokers or companies liable to pay assessed damages arising from events after companies substituted for brokers - PROCEDURE - Costs - 13 defendants made offer of compromise - offer expired without being accepted - during trial plaintiffs settled with 6 defendants - whether "severance" rendered the offer of compromise ineffective - whether order or judgment less favourable than offer of compromise - whether Uniform Civil Procedure Rules 2005, Pt 20 r 20.26 is the corresponding provision to Supreme Court Rules 1970, Pt 22 r 1A for the purpose of the Civil Procedure Act 2005, Sch 6, cl 10(b) such that the offer of compromise is deemed to have been done under Pt 20 r 20.26 - whether discretion should be exercised against indemnity costs under the Uniform Civil Procedure Rules, Pt 42 r 42.15(2)

Supreme Court Rules 1970 Income Tax Assessment Act 1936 (Cth) LEGISLATION CITED : Uniform Civil Procedure Rules 2005 Civil Procedure Act 2005 Supreme Court Act 1970