Boensch as trustee of the Boensch Trust v Pascoe (No 2) [2016] NSWSC 343

Supreme Court New South Wales

Medium Neutral Citation: Boensch as trustee of the Boensch Trust v Pascoe (No 2) [2016] NSWSC 343 Hearing dates: On the papers Date of orders: 09 May 2016 Decision date: 09 May 2016 Jurisdiction: Equity Before: Darke J Decision: Plaintiff ordered to pay indemnity costs from the date of the making of a Calderbank offer. Catchwords: COSTS – indemnity costs order – unsuccessful plaintiff failed to accept Calderbank offer – whether a genuine offer of compromise – whether unreasonable of plaintiff to not accept offer Legislation Cited: Civil Procedure Act 2005 (NSW) s 98 Real Property Act 1900 (NSW) s 74P(1) Uniform Civil Procedure Rules 2005 (NSW) rr 20.26, 42.15A(2) Cases Cited: Calderbank v Calderbank [1975] 3 All ER 333 Miwa Pty Limited v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344 Whitney v Dream Developments Pty Limited [2013] NSWCA 188; (2013) 84 NSWLR 311 Category: Costs Parties: Franz Boensch as trustee of the Boensch Trust (Plaintiff) Scott Darren Pascoe (Defendant) Representation: Counsel: Mr A Bailey (Plaintiff) Mr M F Newton (Defendant)

Solicitors: Somerville Legal (until 26 February 2016); Madison Marcus (Plaintiff) Gilchrist Connell Legal (Defendant) File Number(s): 2012/165657 Publication restriction: None

Judgment

Introduction 1. These proceedings concerned an application by the plaintiff for compensation under s 74P(1) of the Real Property Act 1900 (NSW). The plaintiff claimed that the defendant had, without reasonable cause, lodged a caveat and later refused or failed to withdraw the caveat. The Court delivered judgment on 10 December 2015. The Court answered certain separate questions, and ordered that the proceedings be dismissed with costs. 2. On that occasion, the Court was informed that the defendant wished to make an application for indemnity costs. Directions were made for the provision of written submissions on that question. The parties agreed that the application for indemnity costs could be dealt with on the papers. I note that the plaintiff, through a legal representative, was present in Court on 10 December 2015 when those directions were made. 3. The defendant, in accordance with the directions, provided its written submissions by 5 February 2016. The plaintiff was due to provide its written submissions in response by 19 February 2016. No submissions were provided by that date. The plaintiff's solicitors filed a Notice of Ceasing to Act on 26 February 2016. 4. In those circumstances, I considered that I should proceed to determine the defendant's application for indemnity costs. Reasons for judgment were prepared. On 30 March 2016 the matter was listed for judgment on 31 March 2016. The defendant's solicitor was requested to attempt to notify the plaintiff of the listing. She managed to do so, and later on 30 March 2016 the plaintiff made contact with my chambers and requested that the matter be adjourned. 5. On 31 March 2016, Mr Korakis, solicitor, appeared for the plaintiff. He requested that I not proceed to deliver the judgment, and that time be given for the plaintiff to provide written submissions in response to those of the defendant. I acceded to that request, but ordered the plaintiff to pay the costs of the day forthwith on the indemnity basis. A direction was made for the plaintiff to provide written submissions, and for the defendant to provide any written submissions in reply. 6. Written submissions were duly provided by the plaintiff. The defendant decided not to provide any written submissions in reply.