Assafiri v The Shell Company of Australia Limited [2010] NSWSC 1204

New South Wales Supreme Court

CITATION : Assafiri v The Shell Company of Australia Limited [2010] NSWSC 1204

HEARING DATE(S) : 14 October 2010 JURISDICTION : Equity Division

JUDGMENT OF : McDougall J at 1

EX TEMPORE JUDGMENT DATE : 14 October 2010

(1) Direct entry of judgment for the plaintiff against the defendant in the sum of $1,261,048.77 including interest to today's date; (2) Order the defendant to pay the plaintiff's costs; DECISION : (3) Order that those costs (if not agreed) be assessed on the basis set out in clause 16.3(a)(iii) of the lease made on 24 March 2006 between the plaintiff and the defendant, read in conjunction with clause 1.1(h) of that lease; (4) Reserve liberty to apply either for directions in respect of the assessment of costs or for costs to be fixed on a gross sum basis; (5) Make an order for interest on costs in accordance with order 4, mutatis mutandis, made by the Court of Appeal in Leda Pty Ltd v Weerden (No 2) [2007] NSWCA 283 at [9]; (6) Order that the exhibits remain with the file for 28 days and that thereafter they be dealt with in accordance with the Rules.

CATCHWORDS : DAMAGES – award – interest – whether interest should be calculated in accordance with UCPR or clause 15.2 of lease – where damages related to breach of contract and breach of provisions of lease – whether damages fall within clause 15.2 – UCPR Sch 5, r 6.12, Practice Note SC Gen 16. - COSTS – indemnity costs – whether plaintiff entitled to indemnity costs – construction of lease – whether defendant's conduct of proceedings exhibited relevant delinquency – where part of plaintiff's claims unsustainable – interest on costs – no question of principle.