ACN 002 804 702 (formerly Brooks Building) v McDonald (No. 2) [2009] NSWSC 638

New South Wales Supreme Court

CITATION : ACN 002 804 702 (formerly Brooks Building) v McDonald (No. 2) [2009] NSWSC 638

HEARING DATE(S) : 3 July 2009

JUDGMENT DATE : 3 July 2009

JURISDICTION : Equity

JUDGMENT OF : White J

EX TEMPORE JUDGMENT DATE : 3 July 2009

DECISION : Order that the defendant pay the plaintiffs' costs of the proceedings and that the plaintiffs' costs of the proceedings from 5 November 2008 be paid on the indemnity basis.

CATCHWORDS : No question of principle

ACN 002 804 702 Pty Ltd (formerly Brooks Building Pty Ltd) & Anor PARTIES : v Shane McDonald (No. 2)

FILE NUMBER(S) : SC 5878/07

COUNSEL : Plaintiffs: H Altan Defendant: A Hill

SOLICITORS : Plaintiffs: Cordato Partners Defendant: Palmers Solicitors & Attorneys

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

WHITE J

Friday, 3 July 2009

5878/07 ACN 002 804 702 Pty Ltd (Formerly Brooks Building Pty Limited) & 1 Or v Shane McDonald (No. 2) JUDGMENT 1 HIS HONOUR: The plaintiffs seek an order that the defendant pay its costs of the proceedings and that its costs from 21 October 2008 be paid on the indemnity basis. 2 The defendant submits there should be no order as to costs. The latter submission is put on the basis that I have found there were a number of breaches of the terms of settlement. It might also be added that one of the significant issues argued in the proceedings, namely the conclusiveness of the engineer's certificate, is an issue upon which the plaintiffs fail. 3 The plaintiff seeks indemnity costs on the basis of a without prejudice Calderbank offer made on 21 October 2008. After setting out in some detail the plaintiffs' contentions in the proceedings, the plaintiffs proposed the following: " 1. The plaintiff pays an amount of $45,000 in full and final settlement of the judgment debt;