E Co [a pseudonym] v Q [a pseudonym] (No 5) [2019] NSWSC 844

Supreme Court New South Wales

Medium Neutral Citation: E Co [a pseudonym] v Q [a pseudonym] (No 5) [2019] NSWSC 844 Hearing dates: 17 June 2019 Decision date: 08 July 2019 Before: Ward CJ in Eq Decision: 1. Subject to Order 2, order the first defendant to pay the plaintiffs' costs of the proceedings on the ordinary basis. 2. Order the plaintiffs to pay the first defendant's costs of the preparation and adducing of expert evidence going to the issue as to whether the imposition of the conditions proposed in the principal judgment on the acceleration of the plaintiffs' expectations in relation to the Properties and the Business (namely, the Lonergan Edwards reports) would be "financially ruinous" to the plaintiffs; such amount to be set-off against the costs the subject of Order 1. 3. Pursuant to s 101 of the Civil Procedure Act 2005 (NSW), order the first defendant to pay to the plaintiffs' interest on those costs that the plaintiffs have paid to their legal advisers in connection with these proceedings and that are the subject of Order 1 above, at the prescribed rate as from the date or dates on which the costs concerned were paid, less (in the case of costs paid by the first plaintiff) the amount representing any tax benefit obtained by the first plaintiff by reason of the expenditure on legal costs expenses (i.e., the difference between the tax that was paid by the first plaintiff and the tax that would otherwise have been payable by the first plaintiff had it not been for the expenditure it incurred in relation to the legal fees in respect of these proceedings). 4. Direct the parties to forward within seven days an appropriate form of order to encapsulate the order for interest on costs, if there be any dispute as to the operation or implementation of Order 3. 5. Pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW), order that the costs the subject of the costs orders made above be calculated on a gross sum basis in accordance with a regime to be the subject of directions made to reflect these reasons and direct the parties to forward within seven days draft short minutes of order for that purpose. 6. Costs of the hearing of the costs submissions on 17 June 2019 be included in the costs order made in Order 1 above. Catchwords: COSTS – Costs orders – costs of the principal hearing – costs of the re-opened hearing – claim for party/party costs – claim for indemnity costs on the basis of the principles in Calderbank v Calderbank – claim for interest on a party's costs – claim for costs on a gross sum basis – whether disentitling conduct of the kind that would warrant departure from the general rule that costs follow the event Legislation Cited: Civil Procedure Act 2005 (NSW), ss 98, 101 Courts and Other Justice Portfolio Legislation Amendment Act 2015 (NSW), Sch 1.2 [2]. Uniform Civil Procedure Rules 2005 (NSW), r 42.1 Cases Cited: Arian v Nguyen [2001] NSWCA 5 Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107 Calderbank v Calderbank [1975] 3 WLR 586; [1976] Fam 93 Commonwealth v Australia v Gretton [2008] NSWCA 117 Corbett Court Pty Ltd v Quasar Constructions (NSW) Pty Ltd [2008] NSWSC 1423 Donis v Donis (2007) 19 VR 577; [2007] VSCA 89 Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd [2014] NSWCA 158 E Co [a pseudonym] v Q [a pseudonym] (No 4) [2019] NSWSC 429 E Co v Q (No 3) [2018] NSWSC 646 E Co v Q [2018] NSWSC 442, Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10 Hamod v State of New South Wales [2011] NSWCA 375 Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435; [2005] VSCA 298 Hodge v TCN Channel 9 (No 2) [2006] NSWSC 1272 Hooker v Gilling (No 2) [2007] NSWCA 214 Hughes v Western Australian Cricket Assn (Inc) (1986) 8 ATPR 40-748 Lahoud v Lahoud [2006] NSWSC 126 Lawcover Insurance Pty Ltd v Muriniti [2018] NSWSC 558 Leichhardt Municipal Council v Green [2004] NSWCA 341 Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344 Mobis Parts Australia Pty Ltd v XL Insurance Company SE (No 2) [2019] NSWCA 19 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Permanent Trustee Australia Ltd v FAI General Insurance Co Ltd (NSWSC, Hodgson CJ in Eq, 3 June 1998, unreported) Short v Crawley (No 40) [2008] NSWSC 1302 Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 South West Helicopters Pty Ltd v Stephenson (No 2) [2018] NSWCA 99 Standard Commodities Pty Ltd v Societe Socinter Department Centragel [2005] NSWSC 493; (2005) 54 ACSR 496 Stena Rederi Aktiblag v Austal Ships Sales Pty Ltd [2007] FCA 1141 Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 28 ALR 201; (1979) 42 FLR 213; (1979) ATPR 40-141 Category: Costs Parties: E Co [a pseudonym] (First Plaintiff) EM Co [a pseudonym] (Second Plaintiff) A [a pseudonym] (Third Plaintiff) B [a pseudonym] (Fourth Plaintiff) C [a pseudonym] (Fifth Plaintiff) Q [a pseudonym] (First Defendant) "Second Defendant" (Second Defendant) Representation: Counsel: N Kabilafkas (Plaintiffs) B Lloyd (Defendants)