Australia, July 24 -- New South Wales Land and Environment Court issued text of the following judgement on June 24:

1. I delivered reasons and made orders in these proceedings on 6 June 2025: see In the matter of B & B Legal Pty Ltd trading as Borthwick and Butler Solicitors [2025] NSWSC 587. The statutory demand dated 11 December 2024 served by the defendant on the plaintiff was set aside. The parties were given an opportunity to make written submissions (limited to two pages) regarding costs. I indicated in my reasons that unless there was good reason to do otherwise, a decision concerning costs would be made on the papers. Neither party sought an oral hearing.

2. The plaintiff filed submissions, comprising two pages. It seeks an order that the defendant pay its costs, as agreed or assessed, and that those costs be payable on the indemnity basis for the entirety of the proceedings. In the alternative, the plaintiff seeks an order that the defendant pay its costs on the ordinary basis up to and including 25 April 2025 and on an indemnity basis thereafter.

3. The defendant filed submissions comprising five pages. Those submissions begin as follows: "The defendant requests leave to exceed the page limit for these submissions, with a view to eliminating or reducing the scope of an Appeal on costs". It was not appropriate for the defendant to proceed as if it had leave. Any application should have been made before the submissions were filed. Nevertheless, I have read the submissions. They raise an array of matters, including submissions that there should be no order as to costs, that costs should be limited in particular ways, that the claimed costs are excessive and that enforcement of any costs order should be stayed.

4. For reasons that follow, I will order that the defendant is to pay the plaintiff's costs on the ordinary basis.

Plaintiff's application for indemnity costs

5. The plaintiff commenced these proceedings by an originating process filed on 24 December 2024. That document outlined the bases upon which the statutory demand was disputed: it asserted that there was a genuine dispute as to the existence of the debt and that there is "some other reason" it should be set aside, including that the defendant did not depose that he believed there was no genuine dispute in relation to the purported debt. These were grounds that were upheld. The plaintiff contends that this application put the defendant squarely on notice as to the reasons why the statutory demand was liable to be set aside.

6. The plaintiff also relies on two letters sent to the defendant on a without prejudice basis. The first was a letter dated 17 February 2025 which again identified the bases on which the purported debt was disputed. The letter also addressed the defendant's assertions regarding ineffective service of the plaintiff's originating process. The plaintiff made an offer in this letter, inviting the defendant to: withdraw its statutory demand, provide a written undertaking and to pay the plaintiff's costs in an agreed amount. The letter was not expressed to be made pursuant to the Calderbank principles. It cannot be said that the offer did include much, if any, compromise.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1979fbb16cbbdd5df4978cf2)

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