Chetwynd v Rose (No 2)

[2020] NSWSC 870

Supreme Court of NSW

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Interrogate

Catchwords

1. Costs
2. › Party and party costs
3. › Indemnity basis
4. › Factors relevant to court's discretion
5. › Proceedings commenced or continued where plaintiffs properly advised should have known no chance of success
6. › Wilful disregard of known facts
7. › Groundless contentions causing undue prolongation
8. › Allegations of fraud without proper basis
9. › Unreasonable rejection of settlement offer
10. › Cumulative effect of multiple factors
1. Costs
2. › Party and party costs
3. › Gross sum costs order
4. › Factors relevant to exercise of discretion
5. › Whether court can make fair assessment on materials available
6. › Avoidance of expense delay and aggravation of formal assessment
7. › Expert costs evidence
8. › Civil Procedure Act 2005 (NSW), s 98(4)
1. Costs
2. › Party and party costs
3. › Multiple unsuccessful parties
4. › Joint and several liability
5. › Corporate plaintiff controlled by natural plaintiffs
6. › Claims arising from same facts
7. › Whether liability should be apportioned between hearings
1. Judgments and Orders
2. › Interest
3. › Pre-judgment interest
4. › Period from which interest payable
5. › Discretion under Civil Procedure Act 2005 (NSW), s 100(1)(b)
6. › Whether interest runs from when cause of action arose or from later date
7. › Real and practical loss or detriment
8. › Relevance of when parties' arrangement brought to an end

Quick Take

Pre-judgment interest under s 100(1)(b) of the Civil Procedure Act 2005 (NSW) is not limited to the period from when the cause of action arose; the court may exercise its discretion to award interest only from the date when the parties' informal arrangement was brought to an end, reflecting the plaintiff's real and practical loss. Where multiple unsuccessful plaintiffs include a corporate entity controlled by the natural plaintiffs and all claims arise from the same facts, joint and several liability for the entirety of costs is appropriate even where the corporate plaintiff was joined only for part of the proceedings. Seven cumulative factors were found to justify indemnity costs, including proceedings brought in wilful disregard of known facts, groundless contentions prolonging the case, and unsubstantiated fraud allegations.