Angela Campbell Pty Ltd as Trustee of the Halina Superannuation Fund v Hengrove Hall Pty Ltd [2016] NSWSC 1219

Supreme Court New South Wales

Medium Neutral Citation: Angela Campbell Pty Ltd as Trustee of the Halina Superannuation Fund v Hengrove Hall Pty Ltd [2016] NSWSC 1219 Hearing dates: 6 June 2016 Date of orders: 31 August 2016 Decision date: 31 August 2016 Jurisdiction: Equity Before: Robb J Decision: (1) Order that the first plaintiff pay the defendant's costs of the first plaintiff's notice of motion filed on 30 May 2016. (2) Order that all of the parties bear their own costs of the balance of the proceedings. (3) Order that any documents produced on subpoena or notice to produce, as well as the exhibits, may be returned forthwith in accordance with the Rules. Catchwords: COSTS – discontinuance of proceedings – application for alternative costs order made by plaintiffs under UCPR r 42.19(2) – first plaintiff further seeks indemnity costs following Calderbank offer – consideration of circumstances of discontinuance – held first plaintiff achieved substantial success – held unreasonable conduct by defendant – held entitlement to an alternative costs order made out – whether Calderbank offer was valid – held there was no genuine offer of compromise – held Calderbank offer was not a valid basis for ordering indemnity costs as the court has not decided the issues in dispute – held entitlement to indemnity costs not made out – held parties to bear their own costs of the proceedings other than in respect of the first plaintiff's interlocutory notice of motion – first plaintiff should bear the costs of the interlocutory notice of motion as the court declined to grant interlocutory relief and ordered that the costs of the notice of motion be the defendant's costs in the cause Legislation Cited: Civil Procedure Act 2005 (NSW) Corporations Act 2001 (Cth) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194 Australiawide Airlines Ltd v Aspirion Pty Ltd [2006] NSWCA 365 Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32 Calderbank v Calderbank [1975] 3 All ER 333 Evans Shire Council v Richardson (No 2) [2006] NSWCA 61 Fordyce v Fordham [2006] NSWCA 274; 67 NSWLR 497 In the Matter of Hengrove Hall Pty Ltd [2015] NSWSC 1632 Leichhardt Municipal Council v Green [2004] NSWCA 341 Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344 Ralph Lauren 57 Pty Ltd v Byron Shire Council [2014] NSWCA 107; (2014) 199 LGERA 424 Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 One.Tel Ltd v Commissioner of Taxation (2000) 101 FCR 548 Oshlack v Richmond River Council (1998) 193 CLR 72 Category: Costs Parties: Angela Campbell Pty Ltd (ACN 094 067 437) As Trustee For The Halina Superannuation Fund (first plaintiff) Angela Katarina Campbell (second plaintiff) Hengrove Hall Pty Ltd (defendant) Representation: Counsel: B Oliak (plaintiff) J T Johnson (defendant)