Nair-Smith v Perisher Blue Pty Ltd (No 3) [2013] NSWSC 1736

Supreme Court New South Wales

Medium Neutral Citation: Nair-Smith v Perisher Blue Pty Ltd (No 3) [2013] NSWSC 1736 Hearing dates: Written submissions Decision date: 27 November 2013 Jurisdiction: Common Law Before: Beech-Jones J Decision: (1) Judgment for the Plaintiff against the Defendant in the sum of $1,368,700.00. (2) The Plaintiff pay the Defendant's costs thrown away on vacation of the hearing fixed in the District Court of New South Wales on 2 to 6 February 2009 including costs of the Plaintiff's Notice of Motion dated 21 and 29 January 2009 heard before Toner DCJ commencing 2 February 2009. (3) The Plaintiff pay the Defendant's costs on the ordinary basis thrown away by reason of the amendment the subject of the grant of leave to amend on 5 February 2009. (4) Each party pay their own costs of the Directions Hearing in the District Court of New South Wales on 22 October 2009. (5) The Plaintiff pay the Defendant's costs on the ordinary basis of and incidental to obtaining reports from Mr Charles Needham. (6) Otherwise the Defendant pay the Plaintiff's costs of the proceedings on the ordinary basis. Catchwords: COSTS - offer of compromise - Uniform Civil Procedure Rules 2005 (UCPR) r 20.26 - compliance with UCPR - UCPR r 42.15A - whether Court should order otherwise - whether plaintiff succeeded on relevantly different case to that under UCPR 42.1 - whether Court should make some other order - costs incurred by late amendment of statement of claim - delay and inefficiency of plaintiff in prosecuting claim. Legislation Cited: - Civil Liability Act 2002 - Trade Practices Act 1974 - Trade Practices Amendment (Australian Consumer Law) Act (No 2) - Treasury Legislation Amendment (Professional Standards) Act 2004 (Cth) No 118 of 2004 - Uniform Civil Procedure Rules 2005 - Uniform Civil Procedure Rules (Amendment No 59) 2013 Cases Cited: - Caine v Lumley General Insurance Ltd (No 2) [2008] NSWCA 109 - Calderbank v Calderbank [1975] 3 WLR 586 - Fowdh v Fowdh [1993] NSWCA 100 - Hillier v Sheather (1995) 36 NSWLR 414 - Messiter v Hutchinson (1987) 10 NSWLR 525 - Nair-Smith v Perisher Blue Pty Ltd [2011] NSWSC 878 - Nair-Smith v Perisher Blue Pty Ltd [2013] NSWSC 727 - Nair-Smith v Perisher Blue Pty Ltd (No 2) [2013] NSWSC 1463 - Nominal Defendant v Hawkins [2011] NSWCA 93 - North Sydney Leagues Club Ltd v Synergy Protection Agency Pty Ltd [2011] NSWSC 804 - Vale v Eggins (No 2) [2007] NSWCA 12 - Whitney v Dream Developments Pty Ltd [2013] NSWCA 188 Category: Costs Parties: Ghita Nair-Smith - Plaintiff Perisher Blue Pty Ltd - Defendant Representation: Counsel: D.A. Wheelahan QC, Gary J. Smith (Plaintiff) J.E. Sexton SC, R. Montgomery (Defendant) Solicitors: Lough & Wells (Plaintiff) DibbsBarker (Defendant) File Number(s): 2006/294818