Owners Strata Plan No.64622 v Australand Constructions Pty Limited [2009] NSWSC 948

New South Wales Supreme Court

CITATION : Owners Strata Plan No.64622 v Australand Constructions Pty Limited [2009] NSWSC 948

HEARING DATE(S) : 15 October 2009

JUDGMENT DATE : 22 October 2009

JUDGMENT OF : Hammerschlag J

DECISION : Judgment for the plaintiff for $819,113. Plaintiff's motion dated 21 August 2009 is dismissed. Defendants to pay the plaintiff's costs of the proceedings up to and including 19 September 2008; plaintiff to pay the defendants' costs of the proceedings from 20 September 2008 on the indemnity basis.

CATCHWORDS : PROCEDURE - costs - departing from the general rule - order for costs on indemnity basis –defendants made an offer to the plaintiff under r 20.26 of the UCPR, to which r 42.15(2)(b)(i) applied, which the plaintiff rejected – whether the Court should exercise its discretion not to award the defendants indemnity costs as contemplated by r 42.15(2) – plaintiff argued that such discretion should be exercised because the plaintiff's non-acceptance of the offer was "not plainly unreasonable" – held that this was not sufficient to displace the presumption that indemnity costs should be awarded under r 42.15 of the UCPR as exceptional circumstances are required to do this, and no such circumstances arose in this case

LEGISLATION CITED : Uniform Civil Procedure Rules 2005 Strata Schemes Management Act 1996 (NSW

The Owners Strata Plan No 64622 v Australand Constructions Pty Ltd [2009] Trustee for the Salvation Army (NSW) Property Trust v Becker (No 2) [2007] NSWCA 194 CASES CITED : Nobrega v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (No. 2) [1999] NSWCA 133 Sanko Steamship Co Ltd and Grandslam Enterprises Corporation v Sumitomo Australia Ltd [1996] FCA 1219 South Eastern Sydney Area Health Service v King [2006] NSWCA 2 Morgan v Johnson (1998) 44 NSWLR 578