Cabport Pty Ltd v Marinchek (No 2) [2013] NSWCA 131

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Cabport Pty Ltd v Marinchek (No 2) [2013] NSWCA 131 Hearing dates: On the papers Decision date: 21 May 2013 Before: Meagher JA [1]; Barrett JA [1]; Tobias AJA [1] Decision: (1) The appellant pay the respondent's costs of the trial before Hughes DCJ in so far as they relate to the part of the respondent's cross-claim for defects that succeeded before Olsson DCJ. (2) The respondent pay the appellant's costs of the trial before Hughes DCJ in relation to the remaining issues raised by the respondent's cross-claim, including those issues abandoned at the commencement of the hearing and the part of the claim for defects which was rejected before Olsson DCJ. (3) The appellant pay the respondent's costs of the trial before Olsson DCJ in so far as they relate to the respondent's cross-claim for defects which succeeded before Olsson DCJ. (4) The respondent pay the appellant's costs of the trial before Olsson DCJ relating to the remaining issues before Olsson DCJ. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PROCEDURE - costs - indemnity costs - whether conduct of respondent in maintaining cross-claim and rejecting an offer of compromise "plainly unreasonable" or involved "delinquency" - respondent did not maintain proceedings which had no real prospects of success - respondent not unreasonable in rejecting offer of compromise - indemnity costs not awarded Legislation Cited: Uniform Civil Procedure Rules 2005, r 42.2 Cases Cited: Ballard v Brookfield Australia Investments Ltd [2013] NSWCA 18 Cabport Pty Ltd v Marinchek [2013] NSWCA 51 Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248 Edelbrand Pty Ltd v HM Australia Holdings Pty Ltd (No 2) [2012] NSWCA 217 Jones v Bradley (No 2) [2003] NSWCA 258 Mead v Watson [2005] NSWCA 133; 23 ACLC 718 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323 Sydney City Council v Geftlick [2006] NSWCA 280 Category: Costs Parties: Cabport Pty Ltd (Appellant) Scott Marinchek (Respondent) Representation: Counsel: R Zikmann (Appellant) T Davie (Respondent) Solicitors: Norton Rose Australia (Appellant) Gillis Delaney Lawyers (Respondent) File Number(s): 2012/84955 Decision under appeal Date of Decision: 2011-12-19 00:00:00 Before: Olsson DCJ File Number(s): 2005/296071