Adcock Private Equity v Porges (No 2) [2018] NSWSC 1636

Supreme Court New South Wales

Medium Neutral Citation: Adcock Private Equity v Porges (No 2) [2018] NSWSC 1636 Hearing dates: On the papers Date of orders: 30 October 2018 Decision date: 30 October 2018 Jurisdiction: Equity - Commercial List Before: McDougall J Decision: First defendant to pay plaintiff's costs of its claim against him, assessed on the ordinary basis until 12 October 2018 and on the indemnity basis thereafter. Dismiss plaintiff's application for return of bank guarantees. Catchwords: COSTS – application for indemnity costs – whether offer of compromise valid in accordance with UCPR provisions – whether bank guarantees should be returned – no question of principle. Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Category: Costs Parties: Adcock Private Equity Pty Ltd (Plaintiff) Stephen Robert Porges (First Defendant) Serena Catherine Porges (Second Defendant) Representation: Counsel: P Crutchfield QC / C McMeniman (Plaintiff) K C Morgan SC / A R Jordan (First and Second defendants)

Solicitors: Maddocks (Plaintiff) Clayton Utz (First and Second Defendants) File Number(s): 2017/80166

1. HIS HONOUR: The plaintiff (APE) claimed damages from the defendants (Mr and Mrs Porges) for misleading or deceptive conduct. APE quantified its damages in the sum of $941,703.38. On 5 September 2018, I gave judgment. I concluded that as against Mr Porges [1] , APE was entitled to the amount claimed together with interest [2] . 2. The parties agreed on the amount of interest. Accordingly, on 7 September 2018, judgment was entered for $1,111,594.23. 3. I reserved the question of costs. APE seeks its costs against Mr Porges. Mr Porges accepts that costs should follow the event (UCPR r 42.1), so that APE should have its costs of the claim against him. 4. APE seeks an order that its costs be assessed on the indemnity basis from 13 October 2017. It relies on what it says was an offer of compromise pursuant to UCPR r 20.26 dated 12 October 2017. APE says, further, that if that document is not valid as an offer of compromise, it should have effect (as the covering letter made clear) as a Calderbank [3] offer. 5. There is also a dispute between the parties as to whether APE is entitled to the return of two bank guarantees, each in the sum of $75,000, provided to Mr and Mrs Porges as security for their costs.