Down to Earth Spring Water Pty Limited and Ors v Nikolaidis [2005] NSWSC 609

1. His Honour: On 29 April 2005, I delivered reasons for the matters determined following the lengthy hearing that had earlier taken place during March 2005. 2. On 23 June 2005, the matter was re-listed before me for the determination of the outstanding questions of nominal damages and costs. 3. The matter of nominal damages was resolved without argument. However, I heard detailed argument on the question of costs. 4. The plaintiffs have argued that the following orders should be made: - Order that the Defendants pay the Plaintiffs’ costs of the proceedings from 26 June 2002 up to and including 8 November 2004 on the party/party basis. - Order that the Plaintiffs pay the Defendants’ costs of the proceedings from 9 November 2004 on the party/party basis. 5. The defendants have argued that the plaintiffs should pay their costs since 26 June 2002. Further, they have argued that the orders should take the form of one of the two following alternatives:- 1. The plaintiffs pay the defendants’ costs of the proceedings, except the costs of the determination of the separate questions before her Honour Justice Bell, and the costs payable be assessed on the indemnity basis from 13 July 2000.IN THE ALTERNATIVE1. The plaintiffs pay the defendants’ costs of and incidental to all issues in the proceedings other than those issues the subject of the determination of the separate questions before her Honour Justice Bell, such costs to be assessed on the indemnity basis from 7 December 2004. 6. Before addressing these competing approaches, it is first necessary to refer both to certain relevant matters and the relevant provisions of the Supreme Court Act 1970 (the Act ) and the Supreme Court Rules 1970 (the Rules). 7. On 22 October 1999, an order was made for the determination of certain issues in an early separate trial. On 3 May 2002, Bell J determined those issues. On 19 June 2002, her Honour heard argument on costs. 8. Prior thereto, the defendant had made an offer, dated 7 July 2000. The offer was in the following terms:- WITHOUT PREJUDICE EXCEPT AS TO COSTSWe are instructed that the defendants offer to settle the above proceedings on the basis that the claim be dismissed and each party pay its or their own costs.This offer is open for acceptance until 4.00pm, 13 July 2000. 9. Evidence as to this offer was not before Bell J. 10. Her Honour did have evidence of an offer made on behalf of the plaintiffs. It was contained in a letter dated 16 November 2001. The terms of the offer may be found in the judgment delivered by her Honour on 26 June 2002. 11. In that judgment, she made the following order as to costs:- The defendant is to pay the plaintiffs’ costs of the proceedings to date, such costs to be paid on an indemnity basis from 16 November 2001, with leave to have these costs assessed and paid forthwith. 12 The costs have been assessed and paid by the defendants. Read about this case:

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