LGS v Barbagallo [2013] NSWSC 68

Supreme Court New South Wales

Medium Neutral Citation: LGS v Barbagallo [2013] NSWSC 68 Hearing dates: 06/12/2012 Decision date: 13 February 2013 Jurisdiction: Equity Division - Commercial List Before: McDougall J Decision: Special costs order made: see at [89] Catchwords: COSTS - indemnity costs - abuse of process - evidence did not establish improper purpose or malice COSTS - indemnity costs - whether properly advised plaintiff should have known case had no prospects of success - test is objective COSTS - fixed costs - where no basis for concluding upon a particular gross figure and where process of reaching that assessment unlikely to be protracted or expensive COSTS - indemnity costs - third party costs PRACTICE & PROCEDURE - applications - funds paid into court - claim for payment out of court Legislation Cited: Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules (2005) Cases Cited: Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 Harrison v Schipp (2002) 54 NSWLR 738 Idoport Pty Ltd v National Australia Bank Ltd [2005] NSWSC 1273 Leary v Leary [1987] 1 All ER 261 LGS v Barbagallo [2012] NSWSC 1099 Old v McInnis [2011] NSWCA 410 Oshlack v Richmond River Council (1998) 193 CLR 72 Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd (2006) 66 NSWLR 724 Vieira v O'Shea (No.2) [2012] NSWCA 121 Category: Costs Parties: LGS (NSW) Pty Limited (Formerly In Vivo Communications Pty Ltd) (Subject to deed of company arrangement) ACN 076 083 013 (First Plaintiff) LGS (VIC) Pty Limited ACN 079 799 787(Second Plaintiff) Francesco Barbagallo (First Defendant) Chiron Communications Pty Ltd (ACN 068 226 166) (Second Defendant) Adrenalin Strategics Pty Ltd (Third Defendant) Representation: Counsel: I M Jackman SC / M R Tyson (Plaintiffs) D R Pritchard SC (Defendants) Solicitors: Bartier Perry (Plaintiffs) HWL Ebsworth (Defendants) File Number(s): 2006/293462