Lescap Group Pty Ltd v Pacific Resort Holding Pty Ltd (No. 2) [2012] NSWSC 704

Supreme Court New South Wales

Medium Neutral Citation: Lescap Group Pty Ltd v Pacific Resort Holding Pty Ltd (No. 2) [2012] NSWSC 704 Hearing dates: 7 June 2012 Decision date: 07 June 2012 Jurisdiction: Equity Division Before: White J Decision: Refer to paras [29] and [30] of judgment. Catchwords: COSTS - application for costs on indemnity basis - offer of compromise - offer of compromise conditional on acceptance by all parties - valid offer of compromise conforms with rules and exclusive of costs - refusal of offer - entitlement for costs to be assessed on indemnity basis after date of offer, Civil Procedure Rules r 42.14(2) - whether extent of success of plaintiff on particular issues warrants any variation to the costs orders - held issues not dominant nor wholly severable - insubstantial success having no effect on costs order - costs ordered on ordinary basis until date of offer and on indemnity basis thereafter

PRACTICE AND PROCEDURE - costs - offer of compromise brought by company - offer of compromise signed by director on behalf of company - whether offer of compromise invalid - non-compliance with Civil Procedure Rules, r 7.2 - held non-compliance did not invalidate offer

COSTS - orders - Sanderson order - alternative claims against cross-defendants - whether joinder of parties reasonable and proper - held all parties necessarily joined to avoid separate litigation - whether conduct of unsuccessful defendant makes it fair to impose liability of successful defendant - conduct as cause of joinder of cross-defendants and raising of additional issues - consideration of relevant factors in the overall discretion under Civil Procedure Act 2005 s 100 - held costs of successful cross-defendants to be paid by unsuccessful defendant Legislation Cited: Civil Procedure Act 2005 Cases Cited: Sanderson v Blyth Theatre Co [1903] 2 KB 533 Oxlade v Gosbridge Pty Ltd & Ors (No. 2) [1999] NSWCA 165 JSBG Developments Pty Ltd v Kozlowski [2009] NSWSC 1128; 75 NSWLR 745 Gould v Vaggelas (1985) 157 CLR 215 Category: Costs Parties: Lescap Group Pty Ltd (Plaintiff and 2nd Cross-Defendant) Pacific Resort Holding Pty Ltd (Defendant and Cross-Claimant) Lescap Group Operations Pty Ltd (1st Cross-Defendant) Benjamin Saul Caplan (3rd Cross-Defendant) Representation: Counsel: J Kay Hoyle (Plaintiff) A Ogborne (Defendant) I Griscti (2nd & 3rd Cross-Defendants) Solicitors: Somerset Ryckmans (Plaintiff and Cross-Defendants) CFC Lawyers (Defendant and Cross-Claimant) File Number(s): 2008/280794