Johnson & Anor v Clancy & Anor [2010] NSWSC 1301

Johnson & Anor v Clancy & Anor [2010] NSWSC 1301

The Plaintiffs, having discontinued proceedings by consent without a hearing on the merits, did not establish proper justification to depart from the ordinary position under rule 42.19. The Defendants acted reasonably; the Plaintiffs’ continued prosecution after relevant facts emerged was not justified. Therefore, the Plaintiffs are to pay the Defendants’ costs incurred up to discontinuance, including costs of the notice of motion and costs argument hearing.

Jurisdiction
Australia
Judgment Date
15 November 2010
Procedural Posture
Costs Application Following Discontinuance / Post Discontinuance, Costs Determination
Outcome
Plaintiffs to pay Defendants' costs of the proceedings up to discontinuance, costs of notice of motion, and costs of hearing argument; exhibits to be returned.
Legal Topics
['costs' 'discontinuance' 'specific Performance' 'contract Interpretation']
['civil Procedure' 'equity'] ['costs' 'discontinuance' 'specific Performance' 'contract Interpretation']

Case Brief

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Procedural Posture

Costs Application Following Discontinuance / Post Discontinuance, Costs Determination

Legal Issues

  1. 1 ['Who should bear the costs when proceedings are discontinued by consent without determination on the merits' 'Whether there are grounds to depart from the ordinary rule under UCPR 42.19 for costs upon discontinuance']

Ratio Decidendi

The Plaintiffs, having discontinued proceedings by consent without a hearing on the merits, did not establish proper justification to depart from the ordinary position under rule 42.19. The Defendants acted reasonably; the Plaintiffs’ continued prosecution after relevant facts emerged was not justified. Therefore, the Plaintiffs are to pay the Defendants’ costs incurred up to discontinuance, including costs of the notice of motion and costs argument hearing.

Court Disposition

Plaintiffs to pay Defendants' costs of the proceedings up to discontinuance, costs of notice of motion, and costs of hearing argument; exhibits to be returned.

Orders

  • ["Plaintiffs to pay Defendants' costs up to notice of discontinuance." 'Defendants to have their costs of the notice of motion filed 8 October 2010.' "Plaintiffs to pay Defendants' costs of hearing costs argument." 'Exhibits tendered on costs application to be returned.']