Robert John Downing v WIN Television (NSW) Pty Ltd (No 4) [2011] NSWSC 1257

Supreme Court New South Wales

Medium Neutral Citation: Robert John Downing v WIN Television (NSW) Pty Ltd (No 4) [2011] NSWSC 1257 Hearing dates: 24 October 2011 Decision date: 24 October 2011 Jurisdiction: Equity Division Before: Ball J Decision: See paragraph 22 of this judgment. Catchwords: COSTS - general rule that costs follow the event - whether indemnity costs should be ordered -whether should depart from general rule - no issue of principle Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Calderbank v Calderbank [1975] 3 All ER 333 Newcastle City Council v Wieland [2009] NSWCA 113 Turkmani v Visvalingam (No 2) [2009] NSWSC 279 Category: Costs Parties: Robert John Downing (Plaintiff) WIN Television (NSW) Pty Ltd (First Defendant) Prime Television Limited (Second Defendant) The State of New South Wales (Third Defendant) Representation: Mr R J Brender (Plaintiff) Mr G A Elliott (Plaintiff) Mr D R Stack (Defendants) Galland Elder Lulham Solicitors (Plaintiff) Thomson Lawyers (Defendants) File Number(s): 2007/253463

EX TEMPORE Judgment 1On 18 August 2011 I gave judgment in the matter in favour of the plaintiff for approximately $242,000. The only outstanding issue now is one of costs. The parties raised a number of issues to justify a departure in one way or another from the normal rule that the plaintiff should recover his costs, having been successful in the proceedings: see UCPR r 42.1. Those issues were: (a) whether the plaintiff should obtain an order for costs having regard to UCPR r 42.34; (b) whether, because of the way in which the plaintiff has conducted the case and, in particular, the attitude he took to offers made by the defendants in 1999, some special order for costs should be made; (c) whether the plaintiff should obtain part of his costs on an indemnity basis from the dates on which he made offers of compromise, those dates being 17 March 2011 and 27 May 2011, on the basis that he did better than those offers; (d) whether the plaintiff's costs should be reduced because: (i) he failed in his claim for exemplary damages; (ii) he failed to retain title to the television transmission tower which the first defendant had erected on his land (iii) he only recovered nominal damages in respect of the defendants' trespass on his land from 1 May 2008; (iv) of the way in which the damages hearing was conducted; 2The plaintiff also raised the following questions: (a) whether the costs of a mediation should be treated as costs of the proceedings; and (b) whether there should be an order for interest on costs.