Somerville Legal Pty Limited and v Franz Boensch; Franz Boensch v Somerville Legal Pty Limited [2019] NSWSC 267

Somerville Legal Pty Limited and v Franz Boensch; Franz Boensch v Somerville Legal Pty Limited [2019] NSWSC 267

Because the plaintiff/cross-defendant discontinued its claim and capitulated on the key issues concerning the Deed and the Caveat, the usual costs order required it to pay the defendant/cross-claimant's costs on the ordinary basis. There were no special circumstances justifying indemnity costs: the abandonment of the claim alone was insufficient, the case was not shown on the limited material to be hopeless, the proceedings were not shown to be an abuse of process, and there was no evidence of offers of compromise or Calderbank letters. Nor was there a sufficient basis for no order as to costs or arbitrary apportionment, despite some cross-claim relief no longer being pressed.

Jurisdiction
Australia
Judgment Date
13 March 2019
Procedural Posture
Equity Proceedings Concerning a Caveat and Alleged Mortgage Security, With Cross Claim for Relief Including Setting Aside the Deed and Withdrawal of the Caveat / Ex Tempore Determination of Costs and Final Orders After the Plaintiff/cross Defendant Discontinued Its Claim and Consented to Key Cross Claim Relief
Outcome
Plaintiff's claim discontinued; Deed set aside; caveat ordered to be withdrawn; plaintiff/cross-defendant ordered to pay defendant/cross-claimant's costs on the ordinary basis; balance of cross-claim dismissed.
Legal Topics
['costs Follow the Event' 'indemnity Costs' 'discontinuance of Proceedings' 'caveatable Interest' 'mortgage Security' 'contracts Review Act Claim' 'abuse of Process']
['costs' 'civil Procedure' 'equity' 'real Property' 'contracts'] ['costs Follow the Event' 'indemnity Costs' 'discontinuance of Proceedings' 'caveatable Interest' 'mortgage Security' 'contracts Review Act Claim' 'abuse of Process']

Case Brief

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Procedural Posture

Equity Proceedings Concerning a Caveat and Alleged Mortgage Security, With Cross Claim for Relief Including Setting Aside the Deed and Withdrawal of the Caveat / Ex Tempore Determination of Costs and Final Orders After the Plaintiff/cross Defendant Discontinued Its Claim and Consented to Key Cross Claim Relief

Legal Issues

  1. 1 ["Whether the plaintiff/cross-defendant should pay the defendant/cross-claimant's costs after discontinuing its claim and consenting to orders setting aside the Deed and withdrawing the caveat." 'Whether costs should be ordered on an indemnity basis because the proceedings were said to be hopeless, an abuse of process, or otherwise justified by special circumstances.' 'Whether there should instead be no order as to costs because the defendant/cross-claimant did not press several prayers in the cross-claim.']

Ratio Decidendi

Because the plaintiff/cross-defendant discontinued its claim and capitulated on the key issues concerning the Deed and the Caveat, the usual costs order required it to pay the defendant/cross-claimant's costs on the ordinary basis. There were no special circumstances justifying indemnity costs: the abandonment of the claim alone was insufficient, the case was not shown on the limited material to be hopeless, the proceedings were not shown to be an abuse of process, and there was no evidence of offers of compromise or Calderbank letters. Nor was there a sufficient basis for no order as to costs or arbitrary apportionment, despite some cross-claim relief no longer being pressed.

Court Disposition

Plaintiff's claim discontinued; Deed set aside; caveat ordered to be withdrawn; plaintiff/cross-defendant ordered to pay defendant/cross-claimant's costs on the ordinary basis; balance of cross-claim dismissed.

Orders

  • ["The plaintiff's claim, as set out in the amended statement of claim dated 30 October 2017, be discontinued on the application of the plaintiff under UCPR r 12.1." 'The Deed of Agreement and Mortgage dated 21 September 2015 between the defendant/cross-claimant and the plaintiff/cross-defendant (Deed) be set aside.'...