North Sydney Leagues Club Ltd v Synergy Protection Agency Pty Ltd [2011] NSWSC 804

Supreme Court New South Wales

Medium Neutral Citation: North Sydney Leagues Club Ltd v Synergy Protection Agency Pty Ltd [2011] NSWSC 804 Hearing dates: 19 July 2011 Decision date: 22 July 2011 Jurisdiction: Equity Division - Commercial List Before: Einstein J Decision: (1)Judgment for the cross-claimant on the cross-Summons in the sum of $334,547.51, together with interest up to and including 19 July 2011 in the sum of $141,564.99 (2)The plaintiff/cross defendant is to pay the defendant/cross claimant's costs of the proceedings on a party/party basis, as agreed or assessed, excluding the costs detailed below: (a)The preparation and hearing of the defendant/cross claimant's Notice of Motion filed 10 March 2008, part heard on 28 March 2008 and dismissed on 11 April 2008, in relation to s 50 of the Evidence Act 1995 (NSW); (b)The preparation and hearing of the defendant/cross claimant's application to adduce expert evidence heard on 10 March 2011; (c)The plaintiff/cross defendant's Notice to Produce dated 21 June 2011 and the defendant/cross claimant's Notice of Motion filed 27 June 2011 which was dismissed on 8 July 2011 (3)The defendant/cross claimant is to pay the plaintiff/cross defendant's costs detailed at paragraphs 2(a) and 2(b) above, as agreed or assessed. (4)The plaintiff/cross-defendant is to pay the defendant/cross-claimant interest on the defendant/cross-claimant's costs and disbursements of the proceedings as assessed or agreed: (a)at the rate from time to time applicable set out in UCPR r 36.7; (b)on the Allowed Percentage of each amount of costs and disbursements actually paid by the defendant/cross-claimant in respect of these proceedings; and (c)from the date of payment by the defendant/cross-claimant of each such amount of costs and disbursements until such time as costs due to the defendant/cross-claimant under these orders have been paid. (5) In respect of Order 4, grant liberty to either party to restore upon 3 days' notice. Catchwords: Costs - Restatement of principles of awarding costs - Indemnity costs - Apportionment- Interest on costs - Ordinary rule as to costs- UCPR r42- Caldberbank letter - Consequences of rejecting a calderbank letter - Reasonableness of rejection of offer - Reasonableness to be assessed at the time the offer was rejected and in light of the factual circumstances Legislation Cited: Civil Procedure Act 2005 (NSW) Evidence Act 1995 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Arnott v Choy (No 2) [2010] NSWCA 336 Australian Federation of Consumer Organisations Inc v Tobacco Institute of Australia Ltd (1991) 100 ALR 568 Berkeley Administration Inc v McClelland [1990] FSR 565 Brymount Pty Limited t/a Watson Toyota v Cummins (No 2) [2005] NSWCA 69 Calderbank v Calderbank [1975] 3 All ER 333 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Darryl Cullen v ZLB Behring LLC [2006] NSWSC 359 Drummond and Rosen Pty Ltd v Easey and Ors (No 2) [2009] NSWCA 331 DSE (Holdings) Pty Limited v InterTAN Inc [2004] FCA 1251 Elite Protective Personnel Pty Ltd & Anor v Salmon (No 2) [2007] NSWCA 373 Evans Shire Council v Richardson (No 2) [2006] NSWCA 61 Fowdh v Fowdh (unreported, Supreme Court of New South Wales Court of Appeal, Full Court, 4 November 1993, BC 9302200) Gray v Gray [2005] NSWCA 129 Hanave Pty Ltd v LFOT Pty Ltd (formerly Jagar Pty Ltd) [1998] FCA1429 (BC9805973) Hurstville Municipal Council v Connor (1991) 24 NSWLR 724 InterTAN Inc v DSE (Holdings) Pty Limited [2005] FCAFC 54 Jones v Bradley (No 2) [2003] NSWCA 258 Laguillo v Haden Engineering [1978] 1 NSWLR 306. Lahoud v Lahoud [2006] NSWSC 126 Leda Pty Limited v Weerden and Anor (No2) [2007] NSWCA 283 Leichhardt Municipal Council v Green [2004] NSWCA 341 LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd (No 2) [2002] NSWSC 72 Marks, Kinross, McCullagh & Williamson v GIO Australia Holdings Ltd (No 2) (1996) 66 FCR 128 MGICA (1992) Pty Ltd v Kenny & Good Pty Ltd (No 2) (1996) 70 FCR 236 Ng v Chong [2005] NSWSC 385 North Sydney Leagues' Club Ltd v Synergy Protection Agency Pty Ltd [2010] NSWSC 52 Oshlack v Richmond River Council (1998) 193 CLR 72, Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd [2005] NSWSC 481 Robb Evans of Robb Evans and Associates v European Bank Ltd (No 2) [2009] NSWCA 170 Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & Co Pty Ltd (2001) 53 NSWLR 626 Rosniak v Government Insurance Office (1997) 41 NSWLR 608 Rosser v Maritime Services Board of New South Wales (No 3) (unreported, Supreme Court of New South Wales, 25 November 1997, Young J, BC9706221) Smallacombe v Lockyer Investment Co Pty Ltd (1993) 42 FCR 97 SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323 Smith, Re; ex parte Rundell (No 2) (1991) 6 WAR 299 South Eastern Sydney Area Health Service v King [2006] NSWCA 2 Stockland (Constructors) Pty Ltd v Darryl I Coombs Pty Ltd [2005] NSWSC 252 Van Doore by his tutor the Protective Commissioner v Mendez (No 2) (unreported, Supreme Court of New South Wales, Dunford J, 30 June 1997, BC9702746) Wakeford v Ellis (unreported, Supreme Court of New South Wales, McLaughlin M, 7 May 1998, BC9804384) Waters v PC Henderson (Aust) Pty Ltd (unreported, Supreme Court of New South Wales Court of Appeal, Kirby P, Mahoney JA, Priestley JA, 6 July 1994, BC 9404952) Ying v Song [2011] NSWSC 618 Category: Costs Parties: North Sydney Leagues Club Limited (Plaintiff) Synergy Protection Agency Pty Ltd (formerly Joseph Merhi Industries Pty Ltd) t/as Synergy Protection Agency (Defendant) Representation: Counsel Mr Bromwich SC (Plaintiff) Mr Smark SC, Mr J Mitchell (Defendant) Solicitors Lander & Rogers (Plaintiff/Cross Defendant) Carroll O'Dea (Defendant/Cross Claimant) File Number(s): 2006/00268578