Lucantonio v Kleinert & Ors (Costs) [2011] NSWSC 1642

Supreme Court New South Wales

Medium Neutral Citation: Lucantonio v Kleinert & Ors (Costs) [2011] NSWSC 1642 Hearing dates: Friday, 23 December 2011 Decision date: 23 December 2011 Jurisdiction: Common Law Before: Brereton J Decision: Order that the plaintiff pay the second defendant's costs on a party-party basis to 6 March 2009 and thereafter on an indemnity basis. No further costs order to be made against Mr Dino Lucantonio. No interest order made as between the plaintiff and first and third defendants. Catchwords: PRACTICE AND PROCEDURE - Costs - second defendant makes settlement offer "without prejudice save as to costs" - plaintiff rejects offer - plaintiff's claims fail - offer not in form stipulated by UCPR r 20.26 - such offer can still have costs consequences - in circumstances offer justifies costs payable on indemnity basis from date of offer. PRACTICE AND PROCEDURE - Costs - second plaintiff replaced as trustee - second plaintiff ceases to be party as no longer necessary or proper party - at time second plaintiff ceased to be party opportunity afforded to debate question of costs - opportunity not taken - expectations engendered in former second plaintiff - as matter of discretion no further costs order made. PRACTICE AND PROCEDURE - Interest on costs - in absence of countervailing discretionary consideration ordinary position that party who obtains costs obtains interest - consents between first defendant and plaintiff and third defendant and plaintiff contain term "no other order as to costs" - whether that term precludes order for interest under (NSW) Civil Procedure Act 2005, s 101(4) - at time consents entered into not unreasonable for plaintiff to think costs dispute brought to an end in context where no application for interest on costs made - looked at objectively plaintiff would have assumed consents brought costs disputation to a conclusion - inappropriate to make order for interest. Legislation Cited: (NSW) Civil Procedure Act (2005), s 101(4) (NSW) De Facto Relationships Act (1984) (NSW) Supreme Court Act 1970, s 95 (NSW) Uniform Civil Procedure Rules, r 20.26, r 36.7, s 42.13 Cases Cited: Harris v Schembri, (New South Wales Supreme Court, Bryson J, 7 November 1995, unreported) Inglis v Inglis Research Pty Ltd [2010] NSWSC 749 Kallinicos & Anor v Hunt & Ors [2008] NSWSC 149 Lucantonio v Kleinert [2011] NSWSC 753 Seiwa Australia Pty Ltd v Seeto Financial Circumstances Pty Ltd (No 2) [2010] NSWSC 118 Simmons v Poly Cotton Marketing Pty Ltd [2007] NSWSC 1092 Timms & Ors v Commonwealth Bank of Australia (No 3) [2004] NSWCA 25 Category: Consequential orders Parties: Dean Lucantonio atf The Lucantonio Family Trust (first plaintiff) Dino Lucantonio (second plaintiff) Jaime Kleinert (first defendant) Otto Stichter (second defendant) Darryl Leslie Warren (third defendant) Representation: Counsel: Mr G Laughton SC (plaintiff) Mr D R Sibtain (first and third defendants) Mr G Curtin SC (second defendant) Solicitors: Gells Lawyers (plaintiffs) Kennedys (first defendant) DLA Phillips Fox (second defendant) McCabe Terrill Lawyers (third defendant) File Number(s): 2004/176817