Marshall v Fleming (No 2) [2017] NSWSC 1679

Supreme Court New South Wales

Medium Neutral Citation: Marshall v Fleming (No 2) [2017] NSWSC 1679 Hearing dates: On the papers Date of orders: 05 December 2017 Decision date: 05 December 2017 Jurisdiction: Common Law Before: Payne J Decision: (1) Pursuant to UCPR r 36.16 to amend order 2 made on 24 August 2017 and order that: (a) the Marshalls pay Kreindlers' costs of the trial on the ordinary basis until 30 April 2017; (b) the Marshalls pay Kreindlers' costs of the trial on an indemnity basis on and from 1 May 2017. (2) otherwise dismiss the motion filed by Kreindlers dated 7 September 2017; (3) the Marshalls should pay 50 per cent of Kreindlers' costs of the motion dated 7 September 2017; (4) the Marshalls motion dated 23 October 2017 is dismissed; (5) the Marshalls must pay Kreindlers costs of the motion dated 23 October 2017. Catchwords: COSTS – special costs order – indemnity costs – whether plaintiffs' case was hopeless – Calderbank offers – whether rejecting offer was unreasonable – application to reconsider costs order of motions filed in 2013 where Court of Appeal remitted question to trial judge Legislation Cited: Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Botany Bay City Council v Minister for Local Government (No 2) [2016] NSWCA 127 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801 County Securities Pty Limited v Challenger Group Holdings Pty Limited (No 2) [2008] NSWCA 273 Herning v GWS Machinery Pty Ltd (No. 2) [2005] NSWCA 375 Marshall v Fleming [2017] NSWSC 1107 Mohareb v Palmer [2016] NSWCA 378 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Treloar Constructions Pty Limited v McMillan (No 2) [2017] NSWCA 146 Texts Cited: None Category: Costs Parties: Margaret Lesley Marshall (First Plaintiff) Kim Neil Marshall (Second Plaintiff)