Permanent Custodians Ltd v El Ali (No 2) [2008] NSWSC 1391

Permanent Custodians Ltd v El Ali (No 2) [2008] NSWSC 1391

The plaintiff and its solicitors acted appropriately in obtaining the default judgment, and mere awareness that Ms Awad alleged forgery did not mean the plaintiff should have understood that she contested any debt remaining after the mortgagee sale. The second defendant's failure to file a defence was misconduct in litigation and directly caused the costs of the motion. The proper exercise of the costs discretion was therefore to order the second defendant to pay the plaintiff's costs of and incidental to the motion, with any responsibility of her solicitor being a matter between them.

Jurisdiction
Australia
Judgment Date
23 December 2008
Procedural Posture
Costs on Motion to Set Aside Default Judgment / Consequential Orders After Default Judgment Was Set Aside as Against the Second Defendant
Outcome
The second defendant was ordered to pay the plaintiff's costs of and incidental to the motion to set aside default judgment.
Legal Topics
['default Judgment' 'setting Aside Default Judgment' 'costs Follow the Event' 'misconduct in Litigation' 'failure to File Defence' 'solicitor Default']
['civil Procedure' 'costs'] ['default Judgment' 'setting Aside Default Judgment' 'costs Follow the Event' 'misconduct in Litigation' 'failure to File Defence' 'solicitor Default']

Case Brief

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Procedural Posture

Costs on Motion to Set Aside Default Judgment / Consequential Orders After Default Judgment Was Set Aside as Against the Second Defendant

Legal Issues

  1. 1 ['Whether the plaintiff or the second defendant should pay the costs of and incidental to the motion to set aside default judgment.' "Whether the second defendant's failure to file a defence constituted misconduct in litigation justifying a departure from the ordinary costs rule." "Whether the plaintiff's awareness of the second defendant's allegation of forgery affected the costs outcome."]

Ratio Decidendi

The plaintiff and its solicitors acted appropriately in obtaining the default judgment, and mere awareness that Ms Awad alleged forgery did not mean the plaintiff should have understood that she contested any debt remaining after the mortgagee sale. The second defendant's failure to file a defence was misconduct in litigation and directly caused the costs of the motion. The proper exercise of the costs discretion was therefore to order the second defendant to pay the plaintiff's costs of and incidental to the motion, with any responsibility of her solicitor being a matter between them.

Court Disposition

The second defendant was ordered to pay the plaintiff's costs of and incidental to the motion to set aside default judgment.

Orders

  • ["The second defendant, Ms Awad, pay the plaintiff's costs of and incidental to the motion to set aside default judgment, such costs to be as agreed or assessed."]