Tan Republic Pty Ltd (ACN 147 290 926) v Isabella Shop Fitout & Design Pty Ltd (ACN 147 193 815) & Ors (No. 2) [2013] NSWDC 321

District Court New South Wales

Medium Neutral Citation: Tan Republic Pty Ltd (ACN 147 290 926) v Isabella Shop Fitout & Design Pty Ltd (ACN 147 193 815) & Ors (No. 2) [2013] NSWDC 321 Hearing dates: 16 July 2013; 30 July 2013 (written submissions) Decision date: 31 July 2013 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) The third defendant's application for costs against the plaintiff is dismissed. (2) The plaintiff and third defendant each pay its or her costs of these proceedings. (3) The first and second defendants pay the plaintiff's costs of these proceedings on a party/party basis until 19 September 2012 and thereafter on an indemnity basis. (4) Liberty to the plaintiff and to the defendants to restore in relation to any application for costs to be paid personally by the former solicitors for the defendants. Catchwords: COSTS - plaintiff brings proceedings against a corporation conducted by a husband and wife - plaintiff successful against two out of three defendants - plaintiff seeks indemnity costs pursuant to an offer of compromise - whethe requirement for offer of compromise to be made to all defendants - adjustment of indemnity costs orders under the "rule of thumb" - relevance of close relationship between defendants - failure of claim against one defendant should not prevent an order for indemnity costs being made - whether offer open for reasonable period of time - whether element of compromise involved - whether conduct of litigation by parties warranted orders for (or refusal of orders for) indemnity costs - indemnity costs awarded Legislation Cited: Australian Consumer Law (Cth), s 18 Civil Liability Act 2002 (NSW), s 35 Civil Procedure Act 2005 (NSW), ss 60 and 98(1)(b) Fair Trading Act 1987 (NSW), s 42 Legal Profession Act 2004 (NSW), s 347 Trade Practices Act 1974 (Cth) Uniform Civil Procedure Rules 2005 (NSW), r 42.1 Cases Cited: Adrian v Romin Pty Ltd [2007] QCA 397 Allianz Australia Ltd v Sim; WorkCover Authority (NSW) v Sim; Wallaby Grip (BAE) Pty Ltd (In liq) v Sim [2012] NSWCA 68 Almeida v Universal Dye Works (No 2) [2001] NSWCA 156 Arian v Nguyen (2001) 33 MVR 37 Balesfire Pty Ltd t/as the Gutter Shop & Ors v Jamie Adams & Ors [2006] NSWCA 112 Bullock v London General Omnibus Company [1907] 1 KB 264 Coombes v RTA (No 2) [2007] NSWCA 70 In the matter of Employ (No 96) Pty Ltd (in liquidation) [2013] NSWSC 456 Johnson's Tyne Foundry Pty Ltd v Maffra Corporation (1948) 77 CLR 544 King Network Group Pty Ltd v Club of the Clubs Pty Ltd (No 2) [2009] NSWCA 204 Kirby v Sanderson Motors Pty Ltd (2001) 54 NSWLR 135 Leichhardt Municipal Council v Green [2004] NSWCA 341 Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116 RTA of NSW, Council of the Shire of Evans & Pioneer Road Services Pty Ltd v Palmer (No 2) [2009] NSWCA 140 Sanderson v Blyth Theatre Co [1903] 2 KB 533 St Clair v Timtalla (No 2) [2010] QSC 480 Stevedoring Industry Finance Committee v Gibson [2000] NSWCA 179 Texts Cited: - Category: Costs Parties: Plaintiff: Tan Republic Pty Ltd (ACN 147 290 926) First Defendant: Isabella Shop Fitout & Design Pty Ltd (ACN 147 193 815) Second Defendant: Bill Issa Third Defendant: Tina Issa Representation: Plaintiff: Mr R P Freeman Defendants: J Johnston Plaintiff: Harbourside Legal Services Defendants: Kazi Portolesi Lawyers File Number(s): 2011/351285 Publication restriction: None