New South Wales Land and Housing Corporation v Australia and New Zealand Banking Group Limited

EX TEMPORE Judgment

1. HIS HONOUR: I delivered the principal judgment in these proceedings on 9 March 2015: New South Wales Land and Housing Corporation v Australia and New Zealand Banking Group Limited [2015] NSWSC 176 (the "principal judgment"). These reasons should be read in conjunction with that judgment. Defined terms in that judgment have the same meaning in these reasons.
2. In the principal judgment I determined that ANZ was liable to the Corporation on the guarantees as a matter of their proper construction. It followed, by reason of concessions made on behalf of the second to sixth cross-defendants, that those cross-defendants were liable to indemnify ANZ for its liability to the Corporation and for the costs that ANZ had incurred in relation to those guarantees and these proceedings.
3. Costs are in the discretion of the Court, but starting with the usual position that costs follow the event. In the absence of any other features, costs following the event in this case means that ANZ should pay the Corporation's costs of the proceedings and that the cross‑defendants should pay ANZ's costs of the cross‑summons. The question for determination is whether there are features which would warrant the Court departing from what I have referred to as the usual position.
4. The first point put as a relevant feature is the Corporation's failure to make an express claim for costs in its summons. ANZ did not put the submission as high as saying that the Corporation's failure to make such a claim meant that it could not now claim its costs. Rather, it was a matter to be taken into account in the exercise of the Court's discretion. It was further submitted that when the failure to claim costs expressly was added to comments made during the course of the hearing which accepted the commercial and legal difficulty of ANZ's position, this suggested that there should be a departure from what should otherwise be the usual result.
5. I am not satisfied that the failure to claim costs is sufficient either by itself or in combination with any other feature of this case to disqualify the Corporation from the costs order to which it would otherwise be entitled. One obvious answer is that when an offer to compromise the proceedings was made by the Corporation to the other parties contained in an email dated 20 January 2015 (the "Offer"), the Corporation referred to the "significant compromise" it was offering in respect of abandoning what was said to be its entitlement to costs. It would have been obvious to all the parties that the Corporation clearly understood itself to be entitled, if ultimately successful, to a costs order.