Balout v Bella Ikea Cronulla Pty Ltd (No 2) [2024] NSWSC 1173

Balout v Bella Ikea Cronulla Pty Ltd (No 2) [2024] NSWSC 1173

Where proceedings became otiose due to the fifth defendant's commercial termination of sale contracts, and plaintiffs substantially achieved the relief sought, coupled with unreasonable conduct by the third defendant during part of litigation, the Court departed from the usual rule and ordered the third defendant to pay 50% of the plaintiffs' costs; no order as to costs between plaintiffs and fifth defendant.

Parties
First Plaintiff: Alan Balout; Second Plaintiff: Wisefox Holdings Pty Ltd; First Defendant: Bella Ikea Cronulla Pty Ltd; Second Defendant: Bella & SEB Holdings Pty Ltd; Third Defendant: Joseph Touma; Fifth Defendant: 11 Kingston Avenue Pty Ltd
Jurisdiction
Australia
Judgment Date
20 September 2024
Procedural Posture
Equity Costs Application / Post Expedition; Determination of Costs After Discontinuance Without Final Hearing
Outcome
Costs determined; proceedings otherwise dismissed.
Legal Topics
Costs, Discontinuance, Interlocutory Injunction, Derivative Action
Equity Civil Procedure Costs Discontinuance Interlocutory Injunction Derivative Action

Case Brief

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Parties

Alan Balout

First Plaintiff

Wisefox Holdings Pty Ltd

Second Plaintiff

Bella Ikea Cronulla Pty Ltd

First Defendant

Bella & SEB Holdings Pty Ltd

Second Defendant

Joseph Touma

Third Defendant

11 Kingston Avenue Pty Ltd

Fifth Defendant

Procedural Posture

Equity Costs Application / Post Expedition; Determination of Costs After Discontinuance Without Final Hearing

Legal Issues

  1. 1 What costs orders should be made when proceedings are overtaken by subsequent events and not determined on merits?
  2. 2 Whether grounds exist for the Court to 'order otherwise' under rr 42.19 and 42.20 of Uniform Civil Procedure Rules 2005 (NSW)?
  3. 3 Did plaintiffs achieve substantial success and did conduct of defendants justify departure from costs rule?

Ratio Decidendi

Where proceedings became otiose due to the fifth defendant's commercial termination of sale contracts, and plaintiffs substantially achieved the relief sought, coupled with unreasonable conduct by the third defendant during part of litigation, the Court departed from the usual rule and ordered the third defendant to pay 50% of the plaintiffs' costs; no order as to costs between plaintiffs and fifth defendant.

Court Disposition

Costs determined; proceedings otherwise dismissed.

Orders

  • Order the third defendant to pay 50% the plaintiffs' costs of these proceedings.
  • Make no order as to costs of these proceedings as between the plaintiff and the fifth defendant.