Xabregas v The Owners - Strata Plan No. 79205; Moallem v Consumer, Trader and Tenancy Tribunal & Ors (No. 3) [2014] NSWSC 1338

Xabregas v The Owners - Strata Plan No. 79205; Moallem v Consumer, Trader and Tenancy Tribunal & Ors (No. 3) [2014] NSWSC 1338

No party may use the process for submissions on costs to revisit or alter previous substantive costs orders. Apportionment of costs should reflect the extent of success and participation of the parties on the specific notices of motion in question. Where parties have only partial success on their applications, or when both parties are partially successful and failures are offset, the Court may make no order as to costs or may apportion costs proportionately. The Court itself is best placed to determine the appropriate ascription of liability for costs, rather than a costs assessor. Costs cannot be capped or set off without relevant evidence or agreement.

Jurisdiction
Australia
Judgment Date
30 September 2014
Procedural Posture
Equity Proceedings / Notices of Motion Regarding Costs Orders / Ruling on Costs Following Substantive Judgments
Outcome
Costs orders made as detailed in para [26]: apportionment and orders regarding parties' costs on notices of motion.
Legal Topics
['exceptions to General Rule on Costs' 'partial Success' 'apportionment of Costs' 're Opening of Previous Costs Orders']
['costs'] ['exceptions to General Rule on Costs' 'partial Success' 'apportionment of Costs' 're Opening of Previous Costs Orders']

Case Brief

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Procedural Posture

Equity Proceedings / Notices of Motion Regarding Costs Orders / Ruling on Costs Following Substantive Judgments

Legal Issues

  1. 1 ['What costs orders should be made in relation to the notices of motion filed by Ms Moallem on 8 November 2013 and Dr Xabregas on 13 November 2013, which relate to previous costs orders.' 'Whether parties may revisit or re-open the merits of prior costs orders.']

Ratio Decidendi

No party may use the process for submissions on costs to revisit or alter previous substantive costs orders. Apportionment of costs should reflect the extent of success and participation of the parties on the specific notices of motion in question. Where parties have only partial success on their applications, or when both parties are partially successful and failures are offset, the Court may make no order as to costs or may apportion costs proportionately. The Court itself is best placed to determine the appropriate ascription of liability for costs, rather than a costs assessor. Costs cannot be capped or set off without relevant evidence or agreement.

Court Disposition

Costs orders made as detailed in para [26]: apportionment and orders regarding parties' costs on notices of motion.

Orders

  • ["Progressive Strata to pay Dr Xabregas' costs of her notice of motion filed 13 November 2013." "Progressive Strata to pay 60 per cent of the costs incurred by the Owners Corporation in respect of Ms Moallem's notice of motion filed 8 November 2013 and Dr Xabregas' notice of motion filed 13 November 2013." 'Forty...