COSTS — Application for costs to be paid on an indemnity basis — Where proceedings in this Court were permanently stayed due to them being brought in breach of an exclusive jurisdiction clause — Where proceedings relating to the same conduct were subsequently commenced in Pennsylvania by the plaintiff in reliance on the exclusive jurisdiction clause — Plaintiff’s commencement of parallel proceedings was unreasonable and “relevant delinquency” — Indemnity costs ordered
Quick Take
1Obtaining a stay on the basis of an exclusive jurisdiction clause does not raise a presumption of indemnity costs in NSW (the English approach in A v B was not invoked and the defendants accepted it does not apply). The clause is nonetheless a significant matter informing the discretion under s 98(1)(c) of the Civil Procedure Act 2005 (NSW).
2Under UCPR r 42.15A, an offer of compromise proposing judgment for the defendants is not matched or bettered by a permanent stay. Judgment would render the claim res judicata, whereas a stay leaves foreign proceedings unaffected, so the order is not 'no less favourable to the defendant' than the offer. Such an offer may still carry limited weight as a Calderbank offer showing attempts to extricate from the litigation.
3On the facts, it was unreasonable and a 'relevant delinquency' warranting indemnity costs for a plaintiff to maintain NSW proceedings in breach of an exclusive jurisdiction clause after relying on that same clause to commence parallel foreign proceedings over the same conduct. The plaintiff's self-represented status did not exempt him from the standards governing litigation in the Court.
