Simonson Properties Pty Ltd v Patricia Zoe Hardy [2014] NSWSC 363

Supreme Court New South Wales

Medium Neutral Citation: Simonson Properties Pty Ltd v Patricia Zoe Hardy [2014] NSWSC 363 Hearing dates: 28 March - on papers Decision date: 28 March 2014 Jurisdiction: Equity Division Before: Sackar J Decision: See paragraph 30 Catchwords: COSTS - indemnity costs - where late formulation of pleadings - where withdrawal of Barnes v Addy claim - no question of principle Legislation Cited: Civil Procedure Act 2005 Cases Cited: Harrison v Schipp [2001] NSWCA 13 Lahoud v Lahoud [2006] NSWSC 126 Leichhardt Municipal Council v Green [2004] NSWCA 341 Mainteck Services Pty Limited v Stein Heurtey SA and Stein Heurtey Australia Pty Ltd [2013] NSWSC 1165 NIML Ltd v MAN Financial Australia Limited (No. 2) [2004] VSC 510 Simonson Properties Pty Limited v Bruce Lachlan Hardy and Anor [2014] NSWSC 229 Thaler v Amzalak (No 3) [2013] NSWSC 1315 Category: Costs Parties: Simonson Properties Pty Limited - plaintiff Patricia Zoe Hardy - defendant Representation: Counsel: G Drew - plaintiff M Condon SC - defendant Solicitors: Meridian Lawyers - plaintiff Vaughan Zarb & Co - defendant File Number(s): 2013/30209

Judgment 1I gave judgment in these proceedings on 14 March 2014: see Simonson Properties Pty Limited v Bruce Lachlan Hardy and Anor [2014] NSWSC 229. Terms used below reflect the definitions provided in my earlier judgment. 2In light of my finding that the plaintiff's case was not made out, I invited the parties to re-list the matter so that the question of costs could be determined. I received submissions from counsel on that question, and it was indicated that counsel were content for me to decide the issue of costs on the papers. 3No submissions were made on behalf of the first defendant, judgment having been entered by consent against the plaintiff on the second day of the hearing, with costs. 4The second defendant sought an order that the plaintiff pay her costs on the indemnity basis, or alternatively, on the ordinary basis. The plaintiff submitted that there is no reason to depart from the usual order for costs, payable on the ordinary basis. 5Therefore, it is necessary for me to determine whether the second defendant is entitled to costs on an indemnity basis, as opposed to the ordinary basis.