Brylewski v Maclean (No 2) [2024] NSWSC 227

Brylewski v Maclean (No 2) [2024] NSWSC 227

The sequestration order did not bar determination of the outstanding costs application because the discretionary costs liability was not a provable debt for the purposes of the Bankruptcy Act 1966 (Cth). The plaintiffs were wholly successful in the possession proceedings, and neither subsequent events, unresolved Equity Division issues, nor delay causing no demonstrated prejudice justified departing from the ordinary costs outcome. The defendant's refusal of the plaintiffs' offers was not shown to be unreasonable, so indemnity costs were refused. Given the complexity and overlap of proceedings, a gross sum party/party costs order was appropriate in the assessed amount of $67,500.

Jurisdiction
Australia
Judgment Date
12 March 2024
Procedural Posture
Costs Application in Possession Proceedings / On the Papers After Judgment and Orders for Possession
Outcome
The plaintiffs were awarded a gross sum costs order against the defendant; indemnity costs were refused.
Legal Topics
['costs After Sequestration Order' 'costs Follow the Event' 'indemnity Costs' 'calderbank Offers' 'gross Sum Costs Order' 'possession Proceedings']
['bankruptcy' 'civil Procedure' 'costs'] ['costs After Sequestration Order' 'costs Follow the Event' 'indemnity Costs' 'calderbank Offers' 'gross Sum Costs Order' 'possession Proceedings']

Case Brief

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Procedural Posture

Costs Application in Possession Proceedings / On the Papers After Judgment and Orders for Possession

Legal Issues

  1. 1 ["Whether a sequestration order against the defendant's estate prevented the Court from determining the outstanding costs application." 'Whether the plaintiffs should receive their costs of the possession proceedings despite subsequent events, related Equity Division proceedings and delay in pursuing the costs application.' "Whether costs should be ordered on an indemnity basis because of the defendant's failure to accept Calderbank offers." 'Whether a gross sum costs order should be made and, if so, in what amount.']

Ratio Decidendi

The sequestration order did not bar determination of the outstanding costs application because the discretionary costs liability was not a provable debt for the purposes of the Bankruptcy Act 1966 (Cth). The plaintiffs were wholly successful in the possession proceedings, and neither subsequent events, unresolved Equity Division issues, nor delay causing no demonstrated prejudice justified departing from the ordinary costs outcome. The defendant's refusal of the plaintiffs' offers was not shown to be unreasonable, so indemnity costs were refused. Given the complexity and overlap of proceedings, a gross sum party/party costs order was appropriate in the assessed amount of $67,500.

Court Disposition

The plaintiffs were awarded a gross sum costs order against the defendant; indemnity costs were refused.

Orders

  • ["Order that the defendant pay the plaintiffs' costs of the proceedings in the possession list in an amount of $67,500."]