Supreme Court New South Wales Medium Neutral Citation: Promethean Investments Pty Limited and Promethean Trust v Paul Tsilfidis [2014] NSWSC 1048 Hearing dates: 29 July 2014 Decision date: 29 July 2014 Jurisdiction: Equity Division Before: Sackar J Decision: see para 19 Category: Costs Parties: Promethean Investments Pty Limited atf the Promethean Trust - plaintiff Paul Tsilfidis - first defendant NSW Trustee and Guardian - second defendant Jack Jacovou - third defendant Representation: Counsel: C Alexander - plaintiff In person - first defendant In person - third defendant File Number(s): 2014/145287 Judgment His Honour 1In this matter I gave a judgment in favour of the plaintiff. An argument then took place as to the appropriate order in relation to costs. 2There is no doubt that where a party is successful in litigation the usual order is that the losing party pays the costs on what is called the ordinary basis. 3However, in this case the plaintiff seeks an order that from the date the proceedings were commenced to the hearing the costs ought to be ordered on the indemnity basis. I note that the proceedings were commenced on 14 May of this year. 4The question of indemnity costs is to be governed by a consideration of the conduct generally of the losing party. In awarding indemnity costs a court must act cautiously although it is entirely within the discretion of the court to grant or to refuse a claim for indemnity costs. 5It is said there are a variety of cases where indemnity costs have been awarded pursuant to the court's general discretion and although the discretion is absolute and unfettered it must be exercised judiciously in the sense there must be some special or unusual feature in the case justifying indemnity costs. 6There are many instances in the cases but what is clear is that generally speaking the facts of particular cases will either give rise or not to a basis for an order for indemnity costs. 7There are four bases put forward by the plaintiff justifying an order for indemnity costs. 8First, the unreasonable conduct of the defendant in the way in which he conducted himself during the course of the litigation. 9Secondly, it is said that the defendant had consistently failed to comply with orders of the court. 10Next it is submitted that the defendant through his conduct had caused delay and the incurring of unnecessary expense. 11Lastly it was submitted that fair warning was given that such an order would be sought in correspondence of 29 January 2014. 12It seems to me, for reasons I will refer to shortly that the defendant has acted unreasonably in his opposition to the relief sought in the proceedings. 13To suggest that he consistently failed to comply with orders I think is not made out in the sense he simply did not at any point file a defence or a cross-claim although he was given opportunities undoubtedly under the timetable for that to occur. 14There has, I think been perhaps unnecessary expense incurred in trying to second guess what he may or may not say whether represented or not at this hearing. 15However at all material times the defendant's principal if not only complaint was the alleged mismanagement on the part of the New South Wales Trustee and/or Richardson and Wrench in their arranging a sale at an under value and/or some inappropriate behaviour on the part of the defendant's sister. 16The allegation made by Owen Hodge his then solicitor in correspondence that the contract was frustrated was in my view erroneous and there was no basis for that submission as a matter of law. Nevertheless they and he persisted in advancing that as a basis somehow for holding up completion of the sale. 17The reasons which on most occasions were put forward as to why the sale should not be completed was the fear on the part of the defendant that the property would be lost forever from the family. However it was always put on the basis that the New South Wales Trustee and/or others had caused the loss and there was no suggestion that the purchaser had done anything else other than in good faith and at arm's length enter into a contract for the purchase of the property at an auction. 18Therefore it does seem to me that the conduct on the part of the defendant was wholly unreasonable in persisting in his attempts to thwart the completion of the purchase for reasons which were quite collateral to these proceedings and it seems to me had very little if anything to do with the purchaser plaintiff and it was for that reason, I think, that led to additional expense and delay. 19I consider in all the circumstances, especially as fair warning was given that the defendant pay the costs on an indemnity basis from 14 May to the date of the hearing and that is the order I propose to make. ********** Amendments 06 August 2014 - decision content added Amended paragraphs: coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 August 2014