Sergi v Sergi (No 2) [2019] NSWSC 1221

Sergi v Sergi (No 2) [2019] NSWSC 1221

Because the plaintiffs' summary judgment motion did not proceed to a determination on the merits, the Court applied the ordinary approach of making no costs order unless a party had acted so unreasonably that the other should recover costs. The plaintiffs did not act unreasonably in filing or prosecuting the motion up to 17 May 2019, given the active defendants' default in filing pleadings and the plaintiffs' evidence of co-ownership for most properties. The active defendants also were not shown to have acted unreasonably. Although the active defendants failed to comply with the 22 March 2019 pleading deadline and the plaintiffs incurred costs preparing the motion, the Court was not...

Jurisdiction
Australia
Judgment Date
16 September 2019
Procedural Posture
Costs Determination Concerning Plaintiffs' Notice of Motion Seeking Summary Judgment for Appointment of Trustees for Sale Under S 66 G of the Conveyancing Act 1919 (nsw) / Determined on the Papers After the Summary Judgment Motion Was Dismissed by Agreement Following Leave to File an Amended Defence and Amended Cross Claim
Outcome
Order that each party pay its own costs of the Notice of Motion filed on 2 April 2019.
Legal Topics
['costs of Interlocutory Application Resolved Without Determination on the Merits' 'summary Judgment' 'non Compliance With Court Orders' 'appointment of Trustees for Sale' 'amendment of Pleadings']
['costs' 'civil Procedure' 'equity' 'property'] ['costs of Interlocutory Application Resolved Without Determination on the Merits' 'summary Judgment' 'non Compliance With Court Orders' 'appointment of Trustees for Sale' 'amendment of Pleadings']

Case Brief

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Procedural Posture

Costs Determination Concerning Plaintiffs' Notice of Motion Seeking Summary Judgment for Appointment of Trustees for Sale Under S 66 G of the Conveyancing Act 1919 (nsw) / Determined on the Papers After the Summary Judgment Motion Was Dismissed by Agreement Following Leave to File an Amended Defence and Amended Cross Claim

Legal Issues

  1. 1 ['Whether costs should be ordered for a summary judgment motion that did not proceed to determination on the merits' 'Whether the plaintiffs acted unreasonably in filing or prosecuting the summary judgment motion' 'Whether the active defendants acted unreasonably in defending the summary judgment motion' "Whether a specific costs order should be made due to the active defendants' failure to comply with the order requiring filing of a Defence and any Cross-Claim by 22 March 2019" 'Whether any discrete costs order should be made concerning the Edensor Park properties']

Ratio Decidendi

Because the plaintiffs' summary judgment motion did not proceed to a determination on the merits, the Court applied the ordinary approach of making no costs order unless a party had acted so unreasonably that the other should recover costs. The plaintiffs did not act unreasonably in filing or prosecuting the motion up to 17 May 2019, given the active defendants' default in filing pleadings and the plaintiffs' evidence of co-ownership for most properties. The active defendants also were not shown to have acted unreasonably. Although the active defendants failed to comply with the 22 March 2019 pleading deadline and the plaintiffs incurred costs preparing the motion, the Court was not...

Court Disposition

Order that each party pay its own costs of the Notice of Motion filed on 2 April 2019.

Orders

  • ["Each party pay its own costs of the plaintiffs' Notice of Motion filed on 2 April 2019."]