Stealth Enterprises Pty Limited trading as The Gentleman’s Club v Calliden Insurance Limited (No 2) [2015] NSWSC 1691

Supreme Court New South Wales

Medium Neutral Citation: Stealth Enterprises Pty Limited trading as The Gentleman's Club v Calliden Insurance Limited (No 2) [2015] NSWSC 1691 Hearing dates: Written submissions Date of orders: 12 November 2015 Decision date: 12 November 2015 Jurisdiction: Common Law Before: Schmidt J Decision: 1. Order that the Plaintiff is to pay the Defendant's costs of the proceedings other than as to costs orders already made in its favour and the costs of calling Ms Shepherd to give evidence: (a) to be assessed on the ordinary basis, up to and including 28 October 2015 pursuant to UCPR 42.15A (2)(a) unless otherwise agreed; and (b) on the indemnity costs on and from 29 October 2014, pursuant to UCPR 42.15A (2)(b) unless otherwise agreed. 2. The Plaintiff to pay to the Defendant, interest on costs and disbursements, at the rates set out in Schedule 5 of the Uniform Civil Procedure Rules, on the Allowed Percentage of each amount for or on account of costs and disbursements actually paid to its legal advisers by or on behalf of the defendant, from the date of payment of each such amount until the first to occur of: (a) Such time as the plaintiff has paid the costs due to the defendant under order 1 above, or (b) Any further order relating to interest on costs in these proceedings. In this order: X equals the total amount of costs and disbursements paid or liable to be paid to the defendant's legal advisers in connection with these proceedings. Y equals the total amount of costs and disbursements allowed on assessment to the defendant in connection with these proceedings; and The Allowed Percentage equals ((Y/X) x 100%) 3. The Plaintiff pay the Defendants costs of this application for costs as agreed or assessed. 4. The defendants to pay the plaintiff's costs thrown away by the calling of Ms Shepherd to give evidence, as agreed or assessed. Catchwords: PROCEDURE – costs – departing from the general rule – offer of compromise made and not accepted and judgment no less favourable to the defendant is later obtained – orders made Legislation Cited: Civil Procedure Act 2005 (NSW) Prostitution Act 1992 (ACT) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Caine v Lumley General Insurance Ltd (No 2) [2008] NSWCA 109 Curtis v Harden Shire Council (No 2) [2015] NSWCA 45 Fabre v Lui (No 2) [2015] NSWCA 312 Lahoud v Lahoud [2006] NSWSC 126 Leach v The Nominal Defendant (No 2) [2014] NSWCA 391 Leichhardt Municipal Council v Green [2004] NSWCA 341 Seven Network Ltd v News Ltd [2007] FCA 1489; (2007) 244 ALR 374 Stealth Enterprises Australia Pty Ltd v Calliden Insurance Limited [2013] NSWSC 825 Stealth Enterprises Pty Limited trading as The Gentleman's Club v Calliden Insurance Limited [2015] NSWSC 1270 The Uniting Church v Takacs (No 2) [2008] NSWCA 172 Category: Costs Parties: Stealth Enterprises Australia Pty Limited trading as The Gentlemen's Club (ACN 135 290 10) (Plaintiff) Calliden Insurance Limited (ACN 004 125 268) (Defendant) Representation: Counsel: Mr R Cavanagh SC with Mr S Maybury (Plaintiff) Mr J Sexton SC with Mr M Heath (Defendant)