Warragamba Winery Pty Ltd v State of New South Wales [2010] NSWSC 1314

New South Wales Supreme Court

CITATION : Warragamba Winery Pty Ltd v State of New South Wales [2010] NSWSC 1314

HEARING DATE(S) : 7 May 2010

JUDGMENT DATE : 16 November 2010

JUDGMENT OF : Harrison J

1. Order the first defendant to pay the costs of the appearances before Kirby J on 15 and 16 July 2009, the costs of the appearance before me on 24 September 2009, and the costs of the appearance before me on 19 October 2009. 2. Order the costs referred to in order 1 be payable forthwith in accordance with UCPR 42.7(2). DECISION : 3. Order that in addition to and separately from the costs referred to in order 1, to the extent if at all that the plaintiffs also incurred wasted costs that were occasioned or thrown away by reason of the first defendant's failure to serve its evidence by 10 July 2009 or 18 September 2009, being costs that are referrable to work that cannot still be utilised in the conduct of the plaintiffs' cases, such costs be paid by the first defendant. 4. Order that the costs said to have been thrown away or occasioned by reason of the unsuccessful mediation scheduled for 4 and 5 November 2009 are to be the costs in the proceedings. 5. Order that the costs of the plaintiffs' motion for discovery are to be the costs in the proceedings. 6. Order the first defendant to pay one half of the plaintiffs' costs of this application.

CATCHWORDS : COSTS – application for costs referable to failure by first defendant to serve evidence as ordered by certain date – where plaintiffs sought to enforce the order – whether mediation of no utility in the circumstances – whether costs thrown away as a result – whether first defendant should be ordered to pay the costs – UCPR 42.7(2) -whether order should be made for payment of costs forthwith – costs of motion for discovery – where motion settled – first defendant ordered to pay some costs forthwith – some costs to be costs in the proceedings