Macquarie International Health Clinic Pty Ltd v Sydney Local Health District (No 2) [2019] NSWSC 1492

Supreme Court New South Wales

Medium Neutral Citation: Macquarie International Health Clinic Pty Ltd v Sydney Local Health District (No 2) [2019] NSWSC 1492 Hearing dates: On the papers Date of orders: 01 November 2019 Decision date: 01 November 2019 Jurisdiction: Equity Before: Ward CJ in Eq Decision: 1. Macquarie pay the costs thrown away by the amendments made in the fourth further amended statement of claim filed 19 March 2019, on the ordinary basis other than in relation to the abandonment of the allegations previously made in [63F] to [63I] of the third further amended statement of claim. 2. Macquarie pay the costs thrown away by the making and subsequent abandonment of the allegations previously made in [63F] to [63I] of the third further amended statement of claim on an indemnity basis. 3. Save as ordered above, Macquarie pay SLHD's costs of the proceedings on the ordinary basis. Catchwords: COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers – offer not accepted by plaintiff – whether warrants a departure from the ordinary rule as to costs – offer did not sufficiently identify reliance on Calderbank principles - held that the plaintiff's failure to accept the offer was not unreasonable

COSTS — Party/Party — Bases of quantification — Indemnity basis – where costs thrown away by amendments to the third further amended statement of claim by the plaintiff – where serious allegations of improper purpose and bad faith abandoned on the first day of the hearing – policy consideration that serious allegations of this kind should not lightly be made – plaintiff ordered to pay costs thrown away by the amendments made in the fourth further amended statement of claim and the costs thrown away by the making and subsequent abandonment of the allegations in the third further amended statement of claim Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56-59, 98 Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Anderson Group Pty Ltd v Tynan Motors Pty Ltd (No 2) [2006] NSWCA 120 Brymount Pty Ltd v Cummins [2005] NSWCA 69 Calderbank v Calderbank [1975] 3 All ER 333; 3 WLR 586 Cat Media Pty Ltd v Allianz Australia Insurance Ltd [2006] NSWSC 790 Commonwealth of Australia v Gretton [2008] NSWCA 117 Evans Shire Council v Richardson (No 2) [2006] NSWCA 61 Globaltech Pty Ltd v Pareek [2006] WASC 30 Grace v Thomas Street Café Pty Ltd (No 2) [2008] NSWCA 72 Herning v GWS Machinery Pty Ltd (No 2) [2005] NSWCA 375 Hooker v Gilling (No 2) [2007] NSWCA 214 King Network Group Pty Ltd v Club of the Clubs Pty Ltd (No 2) [2009] NSWCA 204 Leichhardt Municipal Council v Green [2004] NSWCA 341 Macquarie International Health Clinic Pty Ltd v Sydney Local Health District [2019] NSWSC 1199 Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344 Ng v Chong [2005] NSWSC 385 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Parisi v Nigro [2006] NSWCA 121 Picone v Velos [2007] FCA 1183 Sgro v Australia Associated Motor Insurers [2015] NSWCA 262 SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323 Trustee for the Salvation Army (NSW) Property Trust v Becker (No. 2) [2007] NSWCA 194 Category: Costs Parties: Macquarie International Health Clinic Pty Ltd (Plaintiff) Sydney Local Health District (Defendant) Representation: Counsel: N Hutley SC, E Hyde, S Kanagaratnam (Plaintiff) I Jackman SC, J Williams, S Scott (Defendant)