Kerr v Australian Executor Trustees (SA) Ltd; Australian Executor Trustees (SA) Ltd v Fuller and others trading as Sparke Helmore Lawyers (No 2) [2019] NSWSC 1438

Supreme Court New South Wales

Medium Neutral Citation: Kerr v Australian Executor Trustees (SA) Ltd; Australian Executor Trustees (SA) Ltd v Fuller and others trading as Sparke Helmore Lawyers (No 2) [2019] NSWSC 1438 Hearing dates: On the papers; submissions received 17 and 18 October 2019 Decision date: 22 October 2019 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: Judgment for the plaintiff to be entered but stayed for 14 days. First defendant to pay the plaintiff's costs on an ordinary basis up until 19 December 2018 and on an indemnity basis thereafter. First defendant to pay the second to sixty-first defendants' costs. Catchwords: COSTS – party/party – exceptions to general rule that costs follow the event – Calderbank offer

COSTS – party/party – orders when proceedings involve multiple parties – Sanderson order – whether reasonable in the circumstances for the plaintiff to have brought proceedings against the second to sixty-first defendants – where first defendant had pleaded a proportionate liability defence and joined the second to sixty-first defendants by its cross-claim Legislation Cited: Civil Procedure Act 2005 (NSW) Cases Cited: Kerr v Australian Executor Trustees (SA) Ltd; Australian Executor Trustees (SA) Ltd v Fuller and others trading as Sparke Helmore Lawyers [2019] NSWSC 1279 Sanderson v Blyth Theatre Co [1903] 2 KB 533 Zhang v ROC Services (NSW) Pty Ltd; National Transport Insurance by its manager NTI Ltd v Zhang (2016) 93 NSWLR 561; [2016] NSWCA 370 Category: Costs Parties: David Kerr as additional trustee for the S.E.A.S Sapfor Forests Pty Ltd scheme (Plaintiff) Australian Executor Trustees (SA) Limited (First Defendant/Cross-Claimant) Adam John Fuller and others trading as Sparke Helmore Lawyers (Second to sixty-first Defendants/Cross-Defendants) Representation: Counsel: A J Sullivan QC with D Sulan and S Hartford-Davis (Plaintiff) J R J Lockhart SC with C McMeniman (First Defendant/Cross-Claimant) A R Zahra (Second to sixty-first Defendants/Cross-Defendants)