The Owners – Strata Plan 94623 v Taouk [2019] NSWSC 857

The Owners – Strata Plan 94623 v Taouk [2019] NSWSC 857

Leave to discontinue granted as proceedings were commenced without authority, pleadings inadequately particularised, and Owners Corporation resolved not to ratify proceedings; indemnity costs and gross sum order justified to protect defendants, with costs not levied against lots owned by defendants.

Jurisdiction
Australia
Judgment Date
05 July 2019
Procedural Posture
Civil / Leave to Discontinue; Costs Determination
Outcome
Leave granted to discontinue; plaintiff to pay defendants' costs of $35,000; costs not levied against defendants' lots.
Legal Topics
['discontinuance of Proceedings' 'costs Orders' 'indemnity Costs' 'authority to Commence Proceedings']
['civil Procedure' 'strata Law' 'construction Law'] ['discontinuance of Proceedings' 'costs Orders' 'indemnity Costs' 'authority to Commence Proceedings']

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Procedural Posture

Civil / Leave to Discontinue; Costs Determination

Legal Issues

  1. 1 ['On what terms should leave be granted to discontinue proceedings?' 'Should costs be payable on an indemnity basis?' 'Should gross sum costs order be made?' 'Should costs not be payable by defendants as lot owners?']

Ratio Decidendi

Leave to discontinue granted as proceedings were commenced without authority, pleadings inadequately particularised, and Owners Corporation resolved not to ratify proceedings; indemnity costs and gross sum order justified to protect defendants, with costs not levied against lots owned by defendants.

Court Disposition

Leave granted to discontinue; plaintiff to pay defendants' costs of $35,000; costs not levied against defendants' lots.

Orders

  • ['Leave granted to discontinue proceedings by filing Notice of Discontinuance by 12 July 2019.' "Plaintiff to pay defendants' costs in the sum of $35,000." 'Costs to be paid from contributions levied in relation to lots other than lots 12, 15, 20, 23, 28, 34 and 52 pursuant to s 90(2) of the Strata Schemes...