Adams v Groegor (No. 2) [2012] NSWDC 30

District Court New South Wales

Medium Neutral Citation: Adams v Groegor (No. 2) [2012] NSWDC 30 Hearing dates: 14 February and 9 March 2012 Decision date: 28 March 2012 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Defendant's application for indemnity costs for the hearing of the claim brought by the plaintiff dismissed. (2) The plaintiff's application for indemnity costs in relation to the defendant's cross-claim dismissed. (3) Each party bear his own costs of their respective applications. (4) Costs orders (2) and (4) made on 23 December 2011 confirmed in all respects, save for the costs of relisting the matter before Balla DCJ on 22 July 2011, for which the defendant is to pay the plaintiff's costs occasioned by the relisting of the matter due to the defendant's non-compliance with the timetable. Catchwords: COSTS - application by both the plaintiff and defendant for indemnity costs in proceedings where both the claim and the cross-claim failed - whether the claims were "hopeless" - whether the plaintiff could rely upon, and sever, a term in an offer of compromise to settle the cross-claim on the basis of each party paying his own costs. Legislation Cited: Civil Procedure Act 2005 (NSW), ss 3 and 56 Defamation Act 2005 (NSW), s 40 District Court Rules 1970 (NSW), Pt 39A r 25(6) Trade Practices Act 1974 (Cth), ss 45D and 52 Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.1 and 42.6 Cases Cited: Adams v Groegor [2011] NSWDC 213 Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd (No 2) [2009] NSWCA 12 Calderbank v Calderbank [1975] 3 All ER 333 Dean v Stockland Property Management Pty Ltd (No 2) [2011] NSWCA 141 Facton Ltd (formerly G-Star Raw Denim KFT) v Seo [2011] FCA 344 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Limited (1988) 81 ALR 397 Fowdh v Fowdh [1993] NSWCA 100 G M Holden Ltd v Paine (No 3) [2011] FCA 693 Grbavac v Hart [1997] 1 VR 154 Hancock v Arnold; Dodd v Arnold (No 2) [2009] NSWCA 19 J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers, WA Branch (No 2) (1993) 46 IR 301 John Goss Projects Pty Ltd v Thiess Watkins White Constructions Ltd (in liq) [1995] 2 Qd R 591 Kemp v Ryan [2012] ACTCA 12 Liverpool City Council v Estephan [2009] NSWCA 161 LVMH Watch & Jewellery Australia Pty Ltd v Lassanah (Costs) [2011] NSWCA 407 M T Associates Pty Ltd v Aqua-Max Pty Ltd (No 3) [2000] VSC 163 Magenta Nominees Pty Ltd v Richard Ellis (Western Australia) Pty Ltd (Federal Court of Australia, Spender, French and Lee JJ, 29 August 1995) Mahony v Watson [2003] NSWCA 259 Mizikovsky v Queensland Television Ltd (No 3) [2011] QSC 375 Old v McInnes [2011] NSWCA 410 Perry v Comcare [2006] 150 FCR 319 Tickell v Trifleska Pty Ltd (1990) 25 NSWLR 353 Trustee for the Salvation Army (NSW) Property Trust t/as Salvation Army v Becker (No 2) [2007] NSWCA 194 Yorke v Lucas (1985) 158 CLR 661 Texts Cited: - Category: Costs Parties: Plaintiff: Kurt Raymond Adams Defendant: Peter Franz Joachim Groegor Representation: Plaintiff: Mr T Tancred (solicitor) Defendant: Dr J Bishop Plaintiff: Whiteley Ironside & Shillington Defendant: Benjamin & Khoury File Number(s): 2010/267799 Publication restriction: None