Iacullo v Behrens [Orders & Costs] [2006] NSWSC 127

Iacullo v Behrens [Orders & Costs] [2006] NSWSC 127

Because the Plaintiffs had already had the judgment for 14 days but the judgment was long, they were allowed 21 days to decide whether to file a notice of appeal, and execution of the discharge of mortgage order was stayed on specified terms if an appeal was lodged. Costs were ordered according to the parties' relative success: Uwe Behrens was entirely successful and entitled to all of his costs, while Paula Behrens was substantially but not wholly successful and was awarded 90 per cent of her costs.

Jurisdiction
Australia
Judgment Date
24 February 2006
Procedural Posture
Supreme Court of New South Wales Equity Division Proceedings / Orders and Costs Following Judgment
Outcome
Declarations and orders made in the draft initialled by the judge, subject to amendment of order 10; orders may be entered forthwith.
Legal Topics
['costs Orders' 'stay Pending Appeal' 'discharge of Mortgage' 'retention of Exhibits']
['civil Procedure' 'costs' 'equity'] ['costs Orders' 'stay Pending Appeal' 'discharge of Mortgage' 'retention of Exhibits']

Case Brief

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Procedural Posture

Supreme Court of New South Wales Equity Division Proceedings / Orders and Costs Following Judgment

Legal Issues

  1. 1 ['Whether order 10 should be amended to allow time for the Plaintiffs to decide whether to appeal and to stay execution if an appeal is lodged.' "What costs orders should be made in light of the parties' respective success in the proceedings." 'Whether exhibits should remain in court pending the appeal period or any appeal.']

Ratio Decidendi

Because the Plaintiffs had already had the judgment for 14 days but the judgment was long, they were allowed 21 days to decide whether to file a notice of appeal, and execution of the discharge of mortgage order was stayed on specified terms if an appeal was lodged. Costs were ordered according to the parties' relative success: Uwe Behrens was entirely successful and entitled to all of his costs, while Paula Behrens was substantially but not wholly successful and was awarded 90 per cent of her costs.

Court Disposition

Declarations and orders made in the draft initialled by the judge, subject to amendment of order 10; orders may be entered forthwith.

Orders

  • ['The Plaintiffs deliver to the Defendants a discharge of mortgage number 8953490K in registrable form executed by the Plaintiffs, provided that upon the Plaintiffs filing a notice of appeal within 21 days from 24 February 2006, and upon their undertaking if such an appeal is lodged to prosecute it diligently,...