CB Australia Ltd v Shepherd [2018] NSWSC 353

Supreme Court New South Wales

Medium Neutral Citation: CB Australia Ltd v Shepherd [2018] NSWSC 353 Hearing dates: 15 March 2018 Date of orders: 15 March 2018 Decision date: 15 March 2018 Jurisdiction: Equity - Commercial List Before: Parker J Decision: Final orders in agreed terms on claim and cross-claim. Defendant/cross-claimant to pay 50 per cent of plaintiff/cross-defendant's costs. Catchwords: COSTS – apportionment of costs – UCPR r 42.1 – whether costs order should depart from ordinary rule that costs follow the event – where both claim and cross-claim have succeeded – costs order should "fairly reflect commercial consequences of decision" – defendant's success on cross-claim justifies discounting plaintiff's entitlement to costs – defendant ordered to pay 50 per cent of plaintiff's costs Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 42.1 Cases Cited: Medway Oil & Storage Co Ltd v Continental Contractors Ltd [1929] AC 88 Texts Cited: LexisNexis Butterworths, Ritchie's Uniform Civil Procedure NSW (at Release 113) [42.1.15] Category: Costs Parties: CB Australia Ltd (Plaintiff) Colin William Shepherd (Defendant) Representation: Counsel: AJ Bulley (Plaintiff/Cross Defendant) JS Drummond (Defendant/Cross Claimant) Solicitors: Marque Lawyers (Plaintiff/Cross Defendant) Bateman Battersby Lawyers (Defendant/Cross Claimant) File Number(s): 2016/325411 Publication restriction: Nil

Judgment – EX TEMPORE Revised and issued 20 March 2018 1. In December 2017, I handed down my decision on the claim and cross-claim in these proceedings (published as [2017] NSWSC 1768). In that decision I reached conclusions on the entitlement of the parties to relief but did not determine the precise form of orders, the quantum of interest or the question of costs. I directed that the plaintiff bring in short minutes of order to give effect to the judgment to the extent that these matters could be agreed. 2. The parties have reached agreement on some but not all of the issues and this judgment will resolve those which are not agreed. The judgment assumes familiarity with my earlier decision.