Scott v Ennis-Oakes (No 2) [2019] NSWSC 1647

Supreme Court New South Wales

Medium Neutral Citation: Scott v Ennis-Oakes (No 2) [2019] NSWSC 1647 Hearing dates: On the papers Date of orders: 26 November 2019 Decision date: 26 November 2019 Jurisdiction: Equity Before: Darke J Decision: Order that each party pay their own costs of the proceedings up to and including 15 February 2018. Order that the plaintiffs pay the defendant's costs of the proceedings (from 16 February 2018) on the ordinary basis up to and including 24 April 2019 and on an indemnity basis thereafter, save in respect of the plaintiffs' application for costs. Catchwords: COSTS – departure from the usual rule – application by plaintiffs to vary costs order – where plaintiffs commenced proceedings for specific performance of a contract for sale of land – where plaintiffs later amended claim to seek loss of bargain damages instead – where the plaintiffs were unsuccessful in obtaining relief – whether defendant should pay the plaintiffs' costs for part of the proceedings – plaintiffs held to have been justified in commencing and maintaining proceedings for a period – order that each party pay their own costs in respect of that period

COSTS – departure from the general rule – offers of compromise – Calderbank letters – application by defendant for indemnity costs – defendant made offer of compromise and Calderbank letter in similar terms – neither offer accepted by the plaintiffs – defendant obtains judgment more favourable than offers – whether offers constituted genuine compromises – whether it was reasonable to not accept either offer – offers held to be genuine compromises – indemnity costs ordered Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 1.11, 20.26, 36.16, 42.15A Cases Cited: Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd (No 2) [2009] NSWCA 12 Calderbank v Calderbank [1976] Fam 93 Commonwealth of Australia v Gretton [2008] NSWCA 117 Fabre v Lui (No 2) [2015] NSWCA 312 GR Vaughan (Holdings) Pty Ltd v Vogt [2006] NSWCA 263 Herning v GWS Machinery Pty Ltd [No 2] [2005] NSWCA 375 Howard v Pickford Tool Co Ltd [1951] 1 KB 417 King Network Group Pty Ltd v Club of the Clubs Pty Ltd (No 2) [2009] NSWCA 204 Knight v Clifton [1971] Ch 700 Mega-top Cargo Pty Ltd v Moneytech Services Pty Ltd [2016] NSWCA 3 Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344 Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84 Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622 Scott v Ennis-Oakes [2019] NSWSC 1257 Toyota Finance Australia Ltd v Gardiner (No 2) [2016] NSWCA 181 Category: Costs Parties: Kylie Anne Scott (First Plaintiff) Bradley John Scott (Second Plaintiff) Nicole Rae Ennis-Oakes (Defendant) Representation: Counsel: Mr A D Crossland (Plaintiffs) Mr J C Kelly SC with Mr M F Newton (Defendant)