Celermajer Holdings Pty Ltd v Kopas [2011] NSWSC 619

Celermajer Holdings Pty Ltd v Kopas [2011] NSWSC 619

CHPL was entitled to its costs of the main proceedings because it ultimately succeeded, but the costs of the motion to vary and leave to amend should reduce that entitlement because the motion was an indulgence occasioned by matters that could have been addressed earlier and Dr and Mrs Kopas reasonably opposed it. The appropriate order was a single net costs order treating the Kopas' legal aid status as irrelevant under s 42 of the Legal Aid Commission Act 1979 (NSW). No hearing fee order was made because the proposed order depended on the Kopas' legal aid status and was inconsistent with the required approach.

Jurisdiction
Australia
Judgment Date
22 June 2011
Procedural Posture
Costs Application in Equity Division Proceedings Concerning Possession of Residential Premises / Post Judgment Costs Determination After Judgment and Motion to Vary Judgment
Outcome
Costs orders made; no order made in relation to the hearing fee.
Legal Topics
['costs Following the Event' 'costs of Motion to Vary Judgment' 'costs of Application for Leave to Amend Pleadings' 'set Off of Costs Orders' 'legally Assisted Persons' 'court Hearing Fee']
['costs' 'civil Procedure' 'legal Aid' 'landlord and Tenant'] ['costs Following the Event' 'costs of Motion to Vary Judgment' 'costs of Application for Leave to Amend Pleadings' 'set Off of Costs Orders' 'legally Assisted Persons' 'court Hearing Fee']

Case Brief

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Procedural Posture

Costs Application in Equity Division Proceedings Concerning Possession of Residential Premises / Post Judgment Costs Determination After Judgment and Motion to Vary Judgment

Legal Issues

  1. 1 ['Whether CHPL should recover its costs of the main proceedings.' "Whether a separate costs order should be made for CHPL's motion for leave to amend its pleadings." "Whether CHPL or Dr and Mrs Kopas should bear the costs of CHPL's motion to vary the February 2011 judgment." 'How any set-off of costs should operate where Dr and Mrs Kopas were legally assisted persons.' 'Whether Dr and Mrs Kopas should be ordered to pay the outstanding Court hearing fees.']

Ratio Decidendi

CHPL was entitled to its costs of the main proceedings because it ultimately succeeded, but the costs of the motion to vary and leave to amend should reduce that entitlement because the motion was an indulgence occasioned by matters that could have been addressed earlier and Dr and Mrs Kopas reasonably opposed it. The appropriate order was a single net costs order treating the Kopas' legal aid status as irrelevant under s 42 of the Legal Aid Commission Act 1979 (NSW). No hearing fee order was made because the proposed order depended on the Kopas' legal aid status and was inconsistent with the required approach.

Court Disposition

Costs orders made; no order made in relation to the hearing fee.

Orders

  • ['Order Dr and Mrs Kopas to pay the costs of CHPL (on a party/party basis) as agreed or assessed of the proceedings up to and including 9 February 2011, less such amount (as agreed or assessed) as represents the costs incurred by Dr and Mrs Kopas of the motion to vary the February 2011 judgment.' 'There be no other...