Manildra Laboratories v Campbell [2010] NSWSC 70

New South Wales Supreme Court

CITATION : Manildra Laboratories v Campbell [2010] NSWSC 70

HEARING DATE(S) : 5 February 2010 JURISDICTION : Equity Division Commercial List

JUDGMENT OF : McDougall J at 1

EX TEMPORE JUDGMENT DATE : 5 February 2010

DECISION : I order that the second and third defendant's application for indemnity costs be dismissed. I order the second and third defendants to pay the plaintiffs' costs of that application.

CATCHWORDS : COSTS – indemnity costs – whether plaintiff should have known that case was unsustainable – plaintiff not precluded from persisting with case where some, but not all, bases are unfounded – where plaintiff called opposing party as witness – where witness gave evidence unfavourable to plaintiff – whether plaintiff precluded from submitting that Court should take a view of facts on a particular point different to that given by witness – plaintiff not precluded from submitting that, upon consideration of all circumstances in evidence, Court should take a view of facts that stands against evidence of witness – applications for indemnity costs dismissed.

CATEGORY : Consequential orders

Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 CASES CITED : McPhilemy v Times Newspapers Ltd (No 2) [2000] 1 WLR 1732 Richards v Morgan (1863) 4 B and S 641

Manildra Laboratories Pty Limited (First Plaintiff) Honan Holdings Pty Limited (Second Plaintiff) PARTIES : John Bruce Campbell (First Defendant) The Young Roller Flour Mill Company Ltd (Second Defendant) YSF Pty Ltd (Third Defendant) Aust Asia Milling Pty Ltd (Fourth Defendant)